Decertification of Representatives, 35977-35989 [2019-15926]

Download as PDF 35977 Rules and Regulations Federal Register Vol. 84, No. 144 Friday, July 26, 2019 This section of the FEDERAL REGISTER contains regulatory documents having general applicability and legal effect, most of which are keyed to and codified in the Code of Federal Regulations, which is published under 50 titles pursuant to 44 U.S.C. 1510. The Code of Federal Regulations is sold by the Superintendent of Documents. DEPARTMENT OF TRANSPORTATION Federal Aviation Administration 14 CFR Part 73 [Docket No. FAA–2018–0984; Airspace Docket No. 18–ASW–8] RIN 2120–AA66 Expansion of R–3803 Restricted Area Complex; Fort Polk, LA jbell on DSK3GLQ082PROD with RULES History The FAA published a final rule in the Federal Register (84 FR 33845; July 16, 2019) for Docket No. FAA–2018–0984 expanding the R–3803 restricted area complex in central Louisiana by establishing four new restricted areas, R–3803C, R–3803D, R–3803E, and R– 3803F, and making minor technical amendments to R–3803A and R–3803B; Fort Polk, LA. Subsequent to publication, the FAA identified a typographical error for the date listed in Jkt 247001 Issued in Washington, DC, on July 22, 2019. Rodger A. Dean Jr., Manager, Airspace Policy Group. [FR Doc. 2019–15930 Filed 7–25–19; 8:45 am] NATIONAL MEDIATION BOARD SUMMARY: This action corrects a final rule published in the Federal Register of July 16, 2019, that expands the R– 3803 restricted area complex in central Louisiana by establishing four new restricted areas, R–3803C, R–3803D, R– 3803E, and R–3803F, and makes minor technical amendments to the existing R– 3803A and R–3803B legal descriptions for improved operational efficiency and administrative standardization. This action corrects a typographical error listed in the effective date of that rule. DATES: Effective date: 0901 UTC September 12, 2019. FOR FURTHER INFORMATION CONTACT: Colby Abbott, Airspace Policy Group, Office of Airspace Services, Federal Aviation Administration, 800 Independence Avenue SW, Washington, DC 20591; telephone (202) 267–8783. SUPPLEMENTARY INFORMATION: 16:08 Jul 25, 2019 Correction to Final Rule Accordingly, pursuant to the authority delegated to me, Expansion of R–3803 Restricted Area Complex; Fort Polk, LA, published in the Federal Register of July 16, 2019 (84 FR 33845), FR Doc. 2019–15119, is corrected as follows: On page 33845, in the second column, line 28, remove the text ‘‘September 13, 2019’’ and add in its place ‘‘September 12, 2019.’’ BILLING CODE 4910–13–P Federal Aviation Administration (FAA), DOT. ACTION: Final rule; correction. AGENCY: VerDate Sep<11>2014 the effective date; the correct effective date is September 12, 2019. This action corrects that error. 29 CFR Parts 1203 and 1206 [Docket No. C–7198] RIN 3140–AA01 Decertification of Representatives National Mediation Board. Final rule. AGENCY: ACTION: SUMMARY: The National Mediation Board (NMB or Board) is amending 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 by protecting employees’ right to complete independence in the decision to become represented, to remain represented, or to become unrepresented. 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: The final rule is effective August 26, 2019. FOR FURTHER INFORMATION CONTACT: Mary Johnson, General Counsel, National Mediation Board, (202) 692– 5040, legal@nmb.gov. SUPPLEMENTARY INFORMATION: I. Background The Railway Labor Act (RLA or Act), 45 U.S.C. 151, et seq. establishes the PO 00000 Frm 00001 Fmt 4700 Sfmt 4700 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 its statutory mission to investigate representation disputes ‘‘among a carrier’s employees as to who are the representatives of such employees.’’ Under Section 2, Ninth of the RLA, it is the duty of the NMB 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. The RLA also authorizes the NMB to hold a secret ballot election or employ ‘‘any other appropriate method’’ to ascertain the identity of duly designated employee representatives. Id. Unlike the National Labor Relations Act (NLRA), 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 Ry., Airline & S.S. Clerks v. Ass’n for the Benefit of Non-Contract Emps., 380 U.S. 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 (1934)). The 1934 House Report on the 1934 amendments to the RLA states with regard to Section 2, Ninth, ‘‘[i]t provides that employees shall be free to join any labor union of their choice and likewise be free to refrain from joining any union if that be their desire.’’ H.R. Rep. 73 No. 1944 at 2. In Int’l Bhd. of Teamsters v. Bhd. of Ry., Airline & S.S. Clerks, 402 F.2d 196, 202 (1968) (BRAC), the United States Court of Appeals for the District of Columbia E:\FR\FM\26JYR1.SGM 26JYR1 jbell on DSK3GLQ082PROD with RULES 35978 Federal Register / Vol. 84, No. 144 / Friday, July 26, 2019 / Rules and Regulations (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.’’ Nonetheless, prior to 1983, the Board would dismiss without an election an application filed pursuant to Section 2, Ninth if the NMB determined that the applicant did not ‘‘intend to represent’’ the craft or class in collective bargaining under the Act. In Atchison, Topeka & Santa Fe Ry. Co., 8 NMB 66 (1980), the NMB dismissed the application filed by J.D. Blankenship because the authorization cards did not authorize him to act as the representative of the craft or class for purposes of representation under the RLA, but instead authorized him to decertify the incumbent union. The Board stated that ‘‘such cards are not valid for purposes of Section 2, Ninth, to provide a showing of interest.’’ Id. at 70. In Atchison, Topeka & Santa Fe Ry. Co., the Board dismissed an application supported by cards authorizing Laurence G. Russell to represent the craft or class in collective bargaining under the RLA when the NMB became aware that Mr. Russell intended to negotiate an agreement to terminate the existing collective-bargaining agreement and ‘‘thereafter refrain from engaging in further representation of employees.’’ 8 NMB 469, 472 (1981). Even if an individual seeking to decertify succeeded in winning the election and attempted to disclaim representation, the Board would refuse to process the disclaimer if it was filed too close in time to the certification. In that circumstance, the Board would consider the disclaimer as ‘‘clear and compelling evidence’’ that the prior election was not a true representation dispute, was in fact ‘‘designed to frustrate the purposes of the Act, and would void the prior election restoring the certification of the incumbent union. See Mfrs. Ry. Co., 7 NMB 451 (1980). The Board’s position and refusal to act was soundly rejected as a breach of ‘‘its clear statutory mandate’’ in the Fifth Circuit’s decision in Russell v. NMB, 714 F.2d 1332 (1983) (Russell), finding that ‘‘employees have the clear right under the Act to opt for nonrepresentation.’’ In Russell, the Court held that employees have complete independence under the Act to select or reject a collective bargaining representative, and the NMB could no longer refuse to process a representation application after it determined the VerDate Sep<11>2014 16:08 Jul 25, 2019 Jkt 247001 applicant intended to terminate collective representation if certified. Since Russell, however, employees who no longer wish to be represented must still follow an unnecessarily complex procedure to obtain an election. 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, e.g., ‘‘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 a card authorizing him to represent them. Thus, in order to become unrepresented, employees are required to first sign an authorization card to have a straw man step in to represent them. In the resulting election, the ballot options will include the names of the current representative; John Smith, the straw man applicant; ‘‘no union;’’ and an option to write in the name of another representative. To decertify, employees have to vote for John Smith, the straw man, with the understanding that if certified, he will disclaim representation, or vote for no representation.1 Although voters selecting the straw man and the ‘‘no union’’ option may both desire nonrepresentation, their votes are not aggregated. On January 31, 2019, the NMB published a Notice of Proposed Rulemaking (NPRM) in the Federal Register inviting public comment for 60 days on a proposal to amend its RLA rules to provide a straightforward procedure for decertification of representatives. 84 FR 612. Under the Board’s proposed procedure employees 1 In 2010, the Board changed its representation election procedures to certify a representative based on a majority of ballots cast. 75 FR 26062 (May 11, 2010) (2010 Representation Rule). Previously, an individual or organization had to receive votes from a majority of all eligible voters in the craft or class and the only way to vote for no representation was to abstain from voting. Thus, in order to decertify, after soliciting a showing of interest from fellow employees indicating their desire to have the straw man represent them for collective bargaining under the RLA, the straw man had to convince those same employees to either abstain from voting in the subsequent election so that the union would not obtain a majority, or vote for him with the understanding he would disclaim. PO 00000 Frm 00002 Fmt 4700 Sfmt 4700 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 Board further proposed eliminating the straw man representation choice from the ballot in decertification elections. Once it is determined that the showing of interest is valid and that at least 50 percent of the craft or class no longer wish to be represented by their current representative, the Board will authorize an election with the incumbent and the no representation option, along with a write-in option, appearing on the ballot. The applicant’s name will not appear on the ballot since the representation dispute is whether the employees in the craft or class want to continue to be represented by the incumbent union. The Board’s existing run-off rules will continue to apply. In the NPRM, the Board noted that, while employees have the ability to decertify a representative under the RLA, the current straw man process is unnecessarily complex and convoluted. There is no statutory basis for the additional requirement of a straw man where employees seek to become unrepresented. The NMB noted the legislative history and court precedent that, under the RLA, employees have complete independence to be free to reject representation, as they are free to join any labor organization of their own choosing. 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). In the NPRM, the Board also stated its belief that 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, changes in the employee-employer relationship that occur when employees become represented, change representative, or become unrepresented require similar treatment. Accordingly, the Board proposed extending the two year time limit on applications in Section 1206.4 to decertification as well as certifications. The other time limits on E:\FR\FM\26JYR1.SGM 26JYR1 Federal Register / Vol. 84, No. 144 / Friday, July 26, 2019 / Rules and Regulations jbell on DSK3GLQ082PROD with RULES applications set forth in Section 1206.4 will remain unchanged. Subsequently, on March 1, 2019, the NMB published a Notice of Meeting in the Federal Register inviting interested parties to attend an open public hearing with the Board to share their views on the proposed rule changes regarding the proposed decertification procedure. 84 FR 6989. II. Notice-and-Comment Period In response to the NPRM, the NMB received 32 submissions during the official comment period from a variety of individuals, employees, trade associations, labor unions, Members of Congress, advocacy groups, and others. (Comments may be viewed at the NMB’s website at (http://www.nmb.gov). Additionally, the NMB received written and oral comments from nine individuals and representatives of constituent groups under the RLA that participated in the March 28, 2019 open public hearing. All of the comments reflected 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. The commenters supporting the Board’s proposed change stated that the proposal was clearly authorized by the statute and that it would simplify an unnecessarily complex procedure. In its comment in support of the NPRM, the National Railway Labor Conference (NRLC) stated that the ‘‘Board’s proposal is modest and sensible and strikes the proper balance between stability of labor relations—which is critical to the railroads—and the statutory right of employees ‘to determine who shall be the representative of the craft or class’’’ under Section 2, Fourth of the Act. The NRLC noted that there is ‘‘already a decertification mechanism under the RLA. Thus, any suggestion that the Board is contemplating a significant or unprecedented change in representation is hyperbole. The change under consideration is a minor, incremental adjustment that will merely make the existing procedure clearer and simpler.’’ Based on their own experience with the current procedures several individuals who had filed applications as the straw man expressed strong support for a direct decertification procedure. The National Right to Work Legal Foundation (Right to Work) stated that the proposed change is ‘‘long overdue,’’ and the NPRM is ‘‘needed to ensure that all employees have an equal and fair choice regarding union representation. The Board has statutory authority to VerDate Sep<11>2014 16:08 Jul 25, 2019 Jkt 247001 adopt the proposed rules, and should do so as soon as possible.’’ Americans for Tax Reform stated the ‘‘NMB’s proposed rule would restore balance and ensure that all workers, whether they want union representation or not, are treated equally.’’ The Competitive Enterprise Institute (CEI) stated that the proposed rule would eliminate confusion in the decertification process since employees desiring decertification would no longer have to recruit a craft or class member to appear on the ballot as the straw man or convince a majority of employees to sign authorization cards for the straw man while also explaining that this individual is not actually going to represent them. Instead, employees would simply collect cards in support of no union representation. The proposed change, in the view of the CEI, would also protect employees from harassment, citing examples of on-line bullying. Rusty Brown of RWP Labor stated that ‘‘[a]ll Americans should have the right to unionization but should also have the right to remove these unions as their bargaining representative through a straightforward and efficient means.’’ 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. III. Summary of Comments on the NMB’s Proposed Decertification Procedure Commenters to the Board’s proposal to make its current decertification procedure more simple and direct expressed widely divergent views of the NPRM and the Board’s process in formulating the NPRM. The Board’s response to those comments is as follows. A. The Board’s Statutory Authority for the Proposed Change Some of the comments opposed to the NPRM question whether the NMB possesses the statutory authority to make the proposed change. The International Association of Machinists and Aerospace Workers, AFL–CIO (IAM) 2 states that ‘‘the Board plainly 2 On April 24, 2019, following the close of the comment period, the IAM filed a ‘‘Supplemental Comment’’ stating that the NPRM is ‘‘motivated at least in part by a broader political strategy,’’ and requesting that the Board ‘‘exercise its statutory authority, . . . maintain its independence from carrier and political influences, and cease this rulemaking without issuing the proposed rule.’’ The basis for this request lies in the IAM’s Freedom of Information Act (FOIA) Request filed with the Board shortly after the publication of the NPRM. The document produced by the NMB and relied on PO 00000 Frm 00003 Fmt 4700 Sfmt 4700 35979 lacks statutory authority to issue this proposed rule. In fact, Congress has expressly forbidden the action now proposed.’’ While conceding that the RLA neither mentions nor requires a decertification procedure, the IAM asserts that the NPRM is ‘‘contrary to the plain language of the Act.’’ The Transportation Trades Department of the AFL–CIO (TTD) asserts that the proposed change exceeds the Board’s narrow statutory authority to investigate and certify employees’ choice of a union representative. Since, unlike the NLRA, Congress has not amended the RLA to provide an express provision for decertification, the TTD states that the current straw man procedure is the only method for decertification allowed by Section 2, Ninth. One commenter, Deven Mantz, Brotherhood of Maintenance of Way Employes Division-IBT North Dakota Legislative Director, stated that work groups should only be allowed to change unions, not become ‘‘not Union completely.’’ The TTD, IAM, Association of Flight Attendants-CWA (AFA), and other commenters opposed to the NPRM also suggest that Congress’ decision to amend the Act to set a 50 percent showing of interest requirement for representation disputes under the RLA is further evidence that the scope of representation disputes under the RLA is limited to applications ‘‘requesting that an organization or individual be by the IAM is one email from a carrier representative to Board Member Gerald Fauth urging the Board to ‘‘think bigger’’ than decertification and referencing other potential rulemakings by executive branch agencies as well as the potential of rulemaking as political strategy as exercised under the Obama Administration in 2011. To the extent that the IAM is alleging bias, the single received email, which was given no reply, falls short of establishing the ‘‘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. FTC, 627 F.2d 1151, 1154 (D.C. Cir. 1979). IAM does not point to statements by Member Fauth or any Member of the Board. Further, 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). The IAM also appears to suggest that by proposing this rule change, the Board has compromised its neutrality. This suggestion is entirely unwarranted. The Board majority followed the mandates of the Administrative Procedure Act (APA) in considering, drafting, adopting, and promulgating the NPRM. The policy and procedures at issue are the Board’s own determinations. 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. FCC v. Fox Television Stations, Inc., 556 U.S. 502, 515 (2009) (FCC v. Fox). Finally, under the APA, the Board’s final rule is subject to judicial review. E:\FR\FM\26JYR1.SGM 26JYR1 jbell on DSK3GLQ082PROD with RULES 35980 Federal Register / Vol. 84, No. 144 / Friday, July 26, 2019 / Rules and Regulations certified as the representative of any craft or class of employees.’’ With one exception, most opposing commenters acknowledge that employees have the right under the RLA to decertify their representative so long as an employee agrees to act as the straw man and gathers the requisite showing of interest from their fellow employees authorizing the straw man to represent them even though the straw man or the employees want to become unrepresented. During the election, employees must either vote for no representation or for the straw man with the understanding that the straw man will disclaim. The commenters opposed to the NPRM essentially argue that the Act compels the filing of an application for representation even if the straw man applicant, the employees in the craft or class, the incumbent union, and the Board all know that the desire of the employees invoking the Board’s services is an election on the question of whether to remain represented. If the Act prohibits decertification, then there can be no indirect decertification. But that is not the case. As has previously been stated, the RLA makes no mention of decertification and it also sets forth no specific procedure for representation. Air Transp. Ass’n of Am. v. NMB, 663 F.2d 476, 485 (D.C. Cir. 2011) (ATA). Section 2, Ninth gives the Board the authority to investigate representation disputes and ascertain the identity of the employees’ representative through a secret ballot election or ‘‘any other appropriate method of ascertaining the names of the duly designated and authorized representatives.’’ The Board is given broad discretion with respect to the method of resolving representation disputes with the only caveat being that it ‘‘insure’’ freedom from carrier interference. ABNE, 380 U.S. 650, 668– 669 (1965). The courts have also long rejected the idea that the absence of a decertification provision means the Board has no power to decertify a union. Since employees have the right to reject representation under the RLA, inherent in the Board’s authority to certify a representative is the power to certify that a particular group of employees has no representative. BRAC, 402 F.2d 196, 202 (D.C. Cir. 1968). In Russell, discussed above, the court found that the Board exceeded its statutory authority by dismissing a representation application with a valid showing of interest because the applicant did not intend to represent the craft or class for purposes of collective bargaining, contract disputes, and grievances. Rather, if certified, Mr. Russell intended VerDate Sep<11>2014 16:08 Jul 25, 2019 Jkt 247001 to abrogate the contract and disclaim representation. Mr. Russell was the straw man and the purpose of seeking an election was the decertification of employees’ incumbent union. The court found, however, that Mr. Russell did intend to represent the employees within the meaning of Section 1, Sixth which defines ‘‘representative’’ as ‘‘any person or persons, labor union, organization, or corporation designated either by a carrier . . . or by its employees, to act for it or them,’’ since a majority of the craft or class wanted Mr. Russell to take the steps necessary to terminate collective bargaining.3 Russell, 714 F.2d at 1342. It is clear that the Board has the authority and the obligation to accept applications from employees where the question concerning representation is whether employees want to reject representation. The TTD and other commenters opposed to the NPRM assert that Section 2, Twelfth limits the Board’s authority under Section 2, Ninth and preclude the Board’s proposal for direct decertification. The TTD argues that the language of Section 2, Twelfth requires that applications filed with the NMB under Section 2, Ninth are only those ‘‘requesting that an organization or individual be certified as a representative of any craft or class of employees’’ and that ‘‘the proposed rule cannot be reconciled with that language.’’ The IAM asserts that Section 2, Twelfth is an ‘‘additional statutory limit on the Board’s authority to carry out its authority to make a representation determination.’’ The Board agrees that Section 2, Twelfth places an additional limitation to the Board’s authority under Section 2, Ninth, but that limitation is simply that once requested to investigate a representation dispute, 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 of not less than 50 percent of employees in the craft or class. Representation Procedures and Rulemaking Authority, 77 FR 75545 (Dec. 21, 2012) (2012 NMB Rulemaking). 3 The 5th Circuit’s decision in Russell further notes that, at oral argument, the Board argued that rather than filing the straw man application, ‘‘the correct course of action would have been for the employees to have petitioned the Board ‘to hold an election to either vote for the current union representative . . . or, nonunion.’ ’’ Russell, 714 F.2d at 1342. The court stated that it did not see why the Board’s suggested procedure was any more or less objectionable than Mr. Russell’s actions and it was in fact a procedure almost identical to the procedure under the NLRA which the Board had previously stated ‘‘time and time again as not allowed by the RLA.’’ Id. PO 00000 Frm 00004 Fmt 4700 Sfmt 4700 In the Board’s view, the language of Section 2, Twelfth must be read in the context of Section 2, Fourth, which gives the majority of any craft or class the right to determine who their representative shall be, and Section 2, Ninth, which places an affirmative duty to determine the employees’ choice of a representative when a representation dispute exists; the dispute is among a carrier’s employees; and one of the parties to the dispute has requested the Board’s services. See Ry. Labor Execs’ Ass’n v. NMB, 29 F.3d 655, 666–67 (D.C. Cir. 1994) (RLEA). Section 2, Twelfth does not require employees or their representative to pretend to seek certification in order to vindicate their statutorily protected right of complete independence in the choice to be represented or be unrepresented. The FAA Modernization and Reform Act of 2012, Public Law 112–95 (2012 FAA Modernization Act), contained, inter alia, several amendments to the RLA 4 including the addition of Section 2, Twelfth. Section 2, Twelfth titled ‘‘Showing of interest for representation elections,’’ provides that the Board, upon receipt of an application requesting that an organization or individual be certified as the representative of any craft or class of employees, shall not direct an election or use any other method to determine who shall be the representative of such craft or class unless the Board determines that the application is supported by a showing of interest from not less than 50 percent of the employees in the craft or class. 45 U.S.C. 152, Twelfth. Prior to these amendments, the showing of interest requirements needed to support an application under Section 2, Ninth invoking the Board’s services to investigate a representation dispute among a carrier’s employees were established by the exercise of the Board’s discretion and not defined by statute. The NMB’s Rules provided that an individual or organization needed to support their application with authorization cards from thirty-five percent of the craft or class if those employees were unrepresented and authorization cards from more than fifty percent of the craft or class if those employees were already represented. 29 CFR 1206.2. An intervening individual 4 In addition to Section 2, Twelfth, the 2012 FAA Modernization Act amended Section 2, Ninth to direct a run-off election when no ballot option receives a majority in an election with three or more choices (including the no representation option). The run-off election is between the two ballot options that the largest and the second largest number of votes. The amendments also added a provision regarding the Board’s rulemaking authority and provided for an audit of the NMB’s programs and expenditures by the Comptroller General, discussed infra. E:\FR\FM\26JYR1.SGM 26JYR1 Federal Register / Vol. 84, No. 144 / Friday, July 26, 2019 / Rules and Regulations or organization needed a thirty-five percent showing of interest to get on the ballot. 29 CFR 1206.5. The NMB has consistently interpreted the language of Section 2, Twelfth as requiring a valid showing of interest of 50 percent for any application invoking its services to resolve a representation dispute. In its 2012 rulemaking to modify its rules to reflect the amended statutory language, the Board rejected arguments that Section 2, Twelfth did not apply to applications resolving the representation consequences of mergers of two or more carriers. The Board stated the RLA jbell on DSK3GLQ082PROD with RULES 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 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. 2012 NMB Rulemaking, 77 FR 75545. Prior to the 2012 FAA Modernization Act, the Board had one application with different showing of interest requirements. With Section 2, Twelfth, Congress determined that the Board must require the same showing of interest for any application. The Board finds further support for its position in the Conference Report for the 2012 FAA Modernization Act (Conference Report). The most dispositive indicator of legislative intent is the conference report. United States v. Commonwealth Energy Sys., 235 F.3d 11, 16 (1st Cir. 2000). With regard to the NMB, the Conference Report notes that the House bill, Section 903, provided for the repeal of the Board’s 2010 Representation Rule, summarized as changing ‘‘standing rules for union elections at airlines and railroads, which counted abstentions as votes ‘against’ unionizing, to the current rule which counts, only no votes as ‘against unionizing, abstentions do not count either way.’’ H.R. Conf. Rep. No. 112– 381, at 259 (2012). The Senate bill contained ‘‘no similar provision.’’ Id. The conference action report states that repeal of the NMB’s representation rule ‘‘was not agreed to by the Conference, and is not included in the final bill.’’ Id. The conference committee did agree, inter alia, to ‘‘amend section 2 of the VerDate Sep<11>2014 16:08 Jul 25, 2019 Jkt 247001 Railway Labor Act by raising the showing of interest threshold for elections to not less than fifty percent of the employees in the craft or class.’’ Id. at 260 (emphasis added). The use of the term ‘‘election’’ without qualification does not suggest that Congress intended to limit the Board’s authority to only those requests to certify a representative. The 2012 amendments were not intended to limit the types of representation disputes among carrier employees to be resolved by the Board under Section 2, Ninth. The authority of the NMB to resolve all representation disputes—disputes involving employees’ right to become represented, to change representation, or to become unrepresented—is essential to preserve employee free choice. The statutory interpretation urged by the TTD, IAM, and other commenters opposed to the rule would profoundly alter the Board’s core authority under Section 2, Ninth.5 Congress, however, does not use vague schemes or ancillary provisions to alter the fundamental details of a regulatory scheme— it does not, as the adage says, hide elephants in mouse holes. Whitman v. Am. Trucking Ass’ns, 531 U.S. 457, 468 (2001); MCI Telecomms. Corp. v. AT&T Co., 512 U.S. 218, 231 (1994). The 2012 amendments were aimed at the Board’s discretionary practices applicable to all applications, namely the showing of interest requirements and the run-off procedures, in response to the Board’s decision to change the way it counted ballots in all representation elections. In the Board’s view, TTD’s emphasis on the words ‘‘application requesting that an organization or individual be certified as representative’’ is misplaced. Section 2, Ninth gives the Board broad authority to determine employees’ choice of representative. As the D.C. Circuit has noted, the right of employees to reject representation yields the corollary that the Board possesses the implied power to certify to the carrier that a craft or class of employees has rejected representation. BRAC, 402 F.2d 196, 202 (1968) (citing ABNE, 380 U.S. 650 (1965)). Following its duty under Section 2, Ninth, the result of every NMB representation elections is the official notification to the parties and the carrier as to who is the designated representative of the craft or class at issue. When employees choose to become represented or change representation, the notification is titled 5 At best, under a literal reading of Section 2, Twelfth, the 50 percent showing of interest is applicable only to applications seeking certification of an individual or organization and the Board is free to adopt a different showing of interest for applications for decertification. PO 00000 Frm 00005 Fmt 4700 Sfmt 4700 35981 a ‘‘certification.’’ When the employees choose to become or remain unrepresented, the notification is titled a ‘‘dismissal.’’ Commenters opposed to the NPRM also suggest that the fact that the Government Accountability Office (GAO) did not recommend a change to the NMB’s decertification process and Congress’ subsequent inaction is tantamount to a Congressional limitation on the Board’s statutory authority under the RLA. The TTD stated during the hearing that the Comptroller General was to make recommendations to the Board and appropriate congressional committees regarding actions that may be taken by Congress or the Board to ensure that processes are fair and reasonable for all parties, and no recommendations were made. In fact, Section 165(b) of the 2012 FAA Modernization Act did direct GAO to review, evaluate and make recommendations to the Board and congressional committees within 180 days of enactment of the law regarding the Board’s certification procedures. However, that mandate was terminated by the three congressional committees of jurisdiction within 134 days after the enactment of the law, according to GAO documentation. Revae Moran et al., U.S. Gov’t Accountability Office, GAO–12– 835R, ‘‘National Mediation Board Mandates in the FAA Modernization and Reform Act of 2012’’ (June 27, 2012). The congressional committees instead accepted a Congressional Research Service report (CRS Report) summarizing the differences between the three major federal labor relations laws. See generally Alexandra Hegji, Cong. Research Serv., R42526, ‘‘Federal Labor Relations Statutes: An Overview’’ (May 11, 2012). The CRS Report notes that Congress has enacted three major laws that govern labor-management relations in the private and federal sectors: the RLA, the NLRA, and the Federal Service Labor-Management Relations Statute. The CRS Report provides ‘‘a brief history and overview of each of these statutes. It also discusses key statutory provisions for each statute.’’ Id. at 1. The CRS Report’s discussion of decertification states that, although the NMB does not have a formal procedure for decertifying a union, it has ‘‘several practices that effectively remove an incumbent union’s certification.’’ Id. at 8 (citing ABA, ‘‘Selecting a Bargaining Representative,’’ The Railway Labor Act, 1st Edition, pp. 135–137 (1995)). The Board believes that Congressional termination of this GAO research directive and reliance on the CRS E:\FR\FM\26JYR1.SGM 26JYR1 35982 Federal Register / Vol. 84, No. 144 / Friday, July 26, 2019 / Rules and Regulations jbell on DSK3GLQ082PROD with RULES Report which merely summarized thencurrent procedure has no effect on its statutory authority. Before and after the 2012 FAA Modernization Act, the authority to carry out the statutory mandates of the RLA was and is delegated by Congress to the Board. No other agency possesses this authority and the audit provisions added to the RLA by the 2012 FAA Modernization Act do not in any way circumscribe this authority. 45 U.S.C. Section 165(a) provides for the ‘‘audit and evaluation’’ of the programs and expenditures of the NMB by the Comptroller General. An evaluation and audit ‘‘shall be conducted not less frequently than every 2 years . . . [or] as determined necessary by the Comptroller General or the appropriate congressional committees.’’ GAO has conducted such an audit of the NMB in 2013, 2016, and 2018. At the time of this rulemaking, GAO is conducting the 2020 audit. As discussed above, section 165(b), which was terminated, provided for an ‘‘immediate review of certification procedures.’’ This review was to be separate from the biannual evaluation and audit and required the Comptroller General to review the NMB’s process to certify or decertify representation to ensure that the processes are fair and reasonable for all parties by examining whether the NMB’s processes or changes to those processes are consistent with congressional intent. The provision also required a comparison of the NMB’s representation procedures with procedures under other state and federal labor statutes including justification for any discrepancies. The 2013 GAO Report made no recommendations for the changes to the NMB’s representation processes because it found that that the NMB had responded to industry legal challenges and stakeholder disagreements and its procedures were consistent with other federal labor relations statutes. U.S. Gov’t Accountability Office, GAO–14–5, ‘‘Strengthening Planning and Controls Could Better Facilitate Rail and Air Labor Relations’’ (Dec. 3, 2013). The 2013 GAO Report concluded that the 2010 Representation Rule change ‘‘caused disagreement among some stakeholders,’’ and, with regard to decertification, the GAO Report stated Some stakeholders also wanted NMB, as part of the 2010 rulemaking, to clarify the process for decertifying, or removing, a union representative. The RLA does not specify a decertification process, and NMB offers minimal guidance on its website on steps to remove an employee representative. In its preamble to the 2010 rule, NMB noted that, while not as direct as some commenters VerDate Sep<11>2014 16:08 Jul 25, 2019 Jkt 247001 might like, the existing election procedures allow employees to ‘‘rid themselves of a representative,’’ and that the 2010 change further gives these employees the opportunity to affirmatively cast a ballot for no representation. However, an airline carrier official and a former board member said the process in place remains ineffective and highly confusing. For example, a ballot currently may contain two options that are each a vote for no representation: ‘‘no representative,’’ and an applicant who is on the ballot as a ‘‘straw man’’ who intends, if elected, to step down so as to remove representation for the craft or class. This applicant seeking removal of representation has to collect sufficient authorization cards to prompt an election in order for the craft or class to make this change. A former NMB board member said that there is the potential for votes opposed to union representation to be split by votes for ‘‘no representative’’ and for a straw man. The result is that these vote counts will not be consolidated in favor of decertification, which can then happen only if either the ‘‘no representative’’ or straw man receives a majority of the votes cast. Id. at 46. The GAO report also includes a table comparing the NMB to the National Labor Relations Board, the Federal Mediation and Conciliation Service, and the Federal Labor Relations Authority. Id. at 11. Thus, GAO concluded and Congress accepted the conclusion that the NMB’s certification and decertification procedures were reasonable and consistent with other federal statutes. This conclusion in no way precludes the NMB’s obligation to make those procedures less complex and convoluted in order to better effectuate its statutory mandate. Commenters including the TTD, the Southwest Airlines Pilots Association, and the AFA, also assert that the Board is exceeding its statutory authority by changing the language of 29 CFR 1203.2 to allow the investigation of an application to be filed by ‘‘an individual seeking decertification.’’ These commenters misinterpret the NPRM and the Board’s intent as, in fact, the Board agrees that the Board may investigate a representation dispute only upon the request of the employees involved that dispute, or their representative. As the D.C. Circuit stated in RLEA, ‘‘[f]or the Board to act otherwise is for the Board blatantly to exceed its statutory authority.’’ 29 F.3d 655, 665 (D.C. Cir. 1994). The Board agrees with these commenters that only employees or their representatives may invoke the Board’s services under Section 2, Ninth to resolve a dispute regarding the identity of their collective bargaining representative. To make clear the Board’s intent, the text of Section 1203.2 has been clarified in the final rule to PO 00000 Frm 00006 Fmt 4700 Sfmt 4700 require an employee to file a decertification application. Under the proposed rule change, an employee must file an application asserting that a representation dispute exists among the identified craft or class. This application must be supported by a valid showing of interest from 50 percent of the craft or class. The difference is that the Board will now accept authorizations that clearly and unambiguously state the employee’s desire to no longer be represented by their incumbent union. Such an authorization will clearly indicate the intent of the employees and where it is clear that the petitioning employees wish to be free of the incumbent representative, the Board will authorize an election and the ballot will include the incumbent union and the no representation option, along with the write-in option. The applicant’s name will not be included on the ballot because the Board is eliminating once and for all the forced pretense that employees are authorizing the applicant to represent them. B. Justification for the Proposed Change Almost all of the commenters opposed to the NPRM suggest that the Board has not provided an adequate justification for this change. The TTD notes that the NMB does not claim any changed circumstances that have led it to reevaluate a practice that it has stated is consistent with the statute and allows employees an ample opportunity to alter their representation. Many of the commenters opposed to the NPRM also argue that the Board is somehow bound by prior statements that the change is unwarranted. Some commenters point to the 1987 statement that it would only make such a change if it was ‘‘required by statute or essential to the administration of the Act.’’ In re Chamber of Commerce, 14 NMB 347, 360 (1987) (Chamber of Commerce). Other commenters rely on statements in the 2010 Representation Rule that the existing straw man procedure together with the option to vote for ‘‘no representation’’ allows employees to rid themselves of a collective-bargaining representative. 75 FR 26078. Commenters discussed the various justifications for the rule change in the NPRM and provided additional policy reasons in support of and in opposition to the proposed change. Before discussing those specific issues, the Board notes, as it did in the 2010 Representation Rule, that under FCC v. Fox, 556 U.S. 502 (2009), agencies are free to adopt an interpretation of its governing statue that differs from a previous interpretation and that such a E:\FR\FM\26JYR1.SGM 26JYR1 jbell on DSK3GLQ082PROD with RULES Federal Register / Vol. 84, No. 144 / Friday, July 26, 2019 / Rules and Regulations change is subject to no heightened judicial scrutiny. ATA, 663 F.2d 476, 484 (D.C. Cir. 2011). Nor did the Board adopt a ‘‘compelling reasons’’ standard in In re Chamber of Commerce. Id. In upholding the Board’s 2010 Representation Rule, when the NMB finally made a change to the way it counted ballots that it had previously considered and rejected several times, the D.C. Circuit stated that ‘‘the fact that the new rule reflects a change in policy matters not at all’’ and that ‘‘under the APA, the question for us is whether the Board considered all the facts before it, whether it drew reasonable inferences from those facts and whether the final decision was rationally related to those facts and inferences.’’ Id. As discussed in Section A, the Board believes it has the statutory authority to provide employees with the option to directly request a decertification election rather than making them seek decertification in the guise of certification with a straw man. As discussed below, the Board also believes that direct decertification better protects the right of free choice of representatives by eliminating a confusing and counterintuitive process that requires employees to ostensibly seek representation to vindicate their right to be unrepresented. Commenters opposed to the NPRM state there is no evidence to support the Board’s statement that the straw man process is ‘‘unnecessarily complex and convoluted.’’ The Board, however, received many comments regarding the confusion that is inherent in the straw man process. Many commenters supporting the NPRM, including Allegiant Air, CEI, NRLC, Gregg Formella, and the U.S. Chamber of Commerce (Chamber), noted that the Board’s straw man procedure is inherently confusing because employees must authorize a representative to trigger an election to remove their representative. As the Chamber stated in its comment, ‘‘[i]n order to achieve decertification, employees have to collect authorization cards in support of electing a representative they do not actually want and even though the vote is about declining further representation.’’ Right to Work, which provides free legal services to individual employees, stated that its attorneys regularly receive calls from employees seeking information about their right to disassociate from unions and that a ‘‘result of the inquiries is that RLAcovered employees are often left confused and disheartened when the straw man rules are explained to them.’’ Right to Work described the NMB’s current decertification procedure as VerDate Sep<11>2014 16:08 Jul 25, 2019 Jkt 247001 ‘‘daunting’’ to employees and stated that ‘‘many RLA-covered employees simply give up when the straw man obstacles are explained to them.’’ Many comments in support of the NPRM noted the potential for confusion because both the straw man and the ‘‘no representation’’ option appear on the ballot. The CEI noted that under the current procedure, ‘‘employees are faced with a ballot with the straw man and a no union option which causes confusion. Some employees who wish to remove union representation will reason they should vote for the straw man because that is the ballot option for which they signed an authorization card. However, other employees who similarly desire to reject union representation will vote for the no union option. This splits the vote for decertification.’’ Rebecca Smith of Rock Creek House Consulting, LLC stated that she had assisted pilots in decertification efforts and ‘‘no matter how well I explain it to those who ask, on voting day there is still confusion over the ‘straw man.’ This confusion leads to people voting for the ‘straw man’ because they believe it reflects their choice not to be represented.’’ Ms. Smith added that, in her view, making the process more straightforward ‘‘also clarifies for those who want to be represented where to cast their vote since the current ballot gives them what appears to be several choices for representation.’’ The Board takes notice that in both successful and unsuccessful straw man elections employees cast votes for both the straw man and ‘‘no representation.’’ Jeremy Dalrymple of the Heritage Foundation noted that not only is the straw man procedure ‘‘counterintuitive because it requires employees that are seeking to divest themselves of representation first petition for a strawman to represent them, but, given the nationwide system of representation under the RLA, there are significant barriers to communicating the convoluted concept of the ‘strawman’ to employees spread across multiple geographic locations.’’ The comments from individuals who had been a straw man supported the view that the current procedure is confusing. Steven Stoecker, who filed an application as the straw man in Allegiant Air, 43 NMB 84 (2016), stated that he had to convince ‘‘half of my work group . . . to sign an authorization card that stated that I wanted to represent them, even though I didn’t want to. Trying to explain to the rest of the work group that in order to decertify and become unrepresented, they have to sign a card authorizing me to represent PO 00000 Frm 00007 Fmt 4700 Sfmt 4700 35983 them was confusing to say the least.’’ Following the Board’s authorization of the election, Mr. Stoecker stated that ‘‘I had a short window of time to campaign and remind my colleagues to not vote for me but rather to vote ‘no representation.’’’ Ronald Doig, another employee who served as the straw man in Allegiant Air, 42 NMB 124 (2015), commented, [w]e had to start with an education process that explained to my fellow Dispatchers that in order to get the Teamsters out we had to sign an authorization card wanting me as the Straw Man to represent them. Then we further explained, that when the election comes around, do not vote for the Straw Man but vote for the ‘‘No Representation Option.’’ Although we were successful quite frankly some of the Dispatchers never got it. The process as it exists today is confusing and not straightforward. From my experience as a former Straw Man, employees should have a clear path that states we want an election to decertify our union. Firsthand accounts from straw men also revealed the hostility, threats, and retaliation directed at them by union supporters. The comments from Mr. Stoecker, Mr. Woelke, straw man in Flight Options, LLC/FlexJet, LLC, 45 NMB 95 (2018), and Mr. Doig described the burden borne by the straw man. According to Mr. Stoecker, ‘‘[t]he straw man also has a target on his back since his name is on all the authorization cards and on every election ballot . . . Elimination of the straw man will be beneficial from the standpoint that no one individual will have to bear the brunt of union attacks during a decertification effort.’’ A comment from Frank Woelke, who also filed an application as the straw man, described his own experience, including the exposure of personal information on the internet, online personal attacks, and vulgar post cards and suspicious packages sent to his home. Mr. Woelke stated that ‘‘[n]obody in his right mind would want to stand up as a Strawman’’ knowing the intimidation, slander, and harassment they will be exposed to because of the NMB’s procedures. Mr. Doig stated that he was subject to retaliation from the union and its supporters and expressed the view that it ‘‘is almost as if the process is set up to be a deterrent to decertification efforts by making a target out of the Straw Man. Again, a straight forward [sic] process will remove the Straw Man’s name form the ballot and give employees the freedom to exercise their rights without that fear.’’ The TTD argues that the straw man will still exist and that nothing has been simplified by the NPRM. The Board disagrees. Under the current procedures, E:\FR\FM\26JYR1.SGM 26JYR1 jbell on DSK3GLQ082PROD with RULES 35984 Federal Register / Vol. 84, No. 144 / Friday, July 26, 2019 / Rules and Regulations an individual employee files an application supported by valid cards from 50 percent of the craft or class authorizing that individual to represent the employees for purposes of collective bargaining under the RLA. Following the Russell decision, the Board does not inquire into whether the individual actually intends to represent the craft or class or the individual is the straw man. The Board simply authorizes the election and conducts a tally. Sometimes the individual is certified. Sometimes the incumbent representative is decertified. Under the proposed change, employees who want to become unrepresented will express that desire for decertification in their showing of interest and the individual applicant’s name will not appear on the authorization cards or the ballot. If, however, 50 percent of employees in a given craft or class want one of their coworkers to represent them instead of their incumbent representative and that individual files an application with a valid showing of interest indicating that 50 percent of the craft or class want that individual to represent them in collective-bargaining under the RLA, the Board will still authorize an election and conduct a tally. The ballot will include the applicant’s name, the incumbent union, the no representation option, and the write-in option. In that circumstance, the individual applicant will no longer be a straw man. Under the rule change, employees will now have the ability to directly express their desire to become unrepresented instead of hiding it behind a straw man. The intent to decertify will be clear through authorization cards stating that they no longer wish to be represented by their incumbent union and the individual who filed the application will not appear on the ballot. The IAM states the NPRM is a ‘‘solution in search of a problem.’’ Other commenters like the TTD, SWAPA, and IBT state that the straw man process is adequate as employees currently use it and succeed in decertifying their union. In her comment, Senator Patty Murray stated that there already is ‘‘a wellestablished process for aviation and rail workers to remove their union representation or change union representation should they choose to do so.’’ The comments received from individuals who have used the current procedure, however, demonstrate that it is confusing, counterintuitive, and often unduly burdensome for the employee who acts as straw man. The Board’s own experience with calls and inquiries from employees seeking to become unrepresented bears this out. The Board VerDate Sep<11>2014 16:08 Jul 25, 2019 Jkt 247001 believes the current straw man procedure requires employees who wish to become unrepresented to take an additional, unnecessary, and counterintuitive step to get an election to determine whether the majority of employees in their craft or class desire to become unrepresented. When employees who are currently unrepresented want representation, they file an application supported by a showing of interest for the organization they want to represent them. When employees who are currently represented want to change their representation, they file an application supported by a showing of interest for the new organization they want to represent them. When employees no longer wish to be represented, they file an application supported by a showing of interest for someone who they don’t want to represent them but they must say they want as a representative to get an election to vote against the incumbent representative they no longer want. The Board’s proposal will simply allow employees who no longer want representation to directly state that to the Board, in both their application and on their showing of interest and to get an election to resolve the representation dispute they actually have. The Board is not adopting this proposal to promote decertification. The Board has no stake in the outcome of a representation dispute. Its statutory role is to act as a neutral ‘‘referee’’ in representation matters. Switchmen v. NMB, 320 U.S. 297, 304 (1943). The Board ‘‘simply investigates, defines the scope of the electorate, holds the election, and certifies the winner.’’ ABNE, 380 U.S. 650, 667 (1965). The Board believes that the proposed change is necessary to fulfil its statutory mission to protect employees’ right to free choice in representation, including the choice to be unrepresented. The choice in every representation dispute belongs to the employees of the craft or class involved, not to the Board. And employees who no longer want collective representation have the right to bring that dispute directly to the Board and have it resolved. Commenters opposed to the NPRM referenced and supplied statistics regarding the number of applications that resulted in no representation. The TTD states that employees freely and frequently alter their representatives and submitted a chart showing elections in which, after an application was filed by an individual or ‘‘small unaffiliated organization,’’ some incumbent unions were decertified, some incumbent unions remained certified, and some individual/small unaffiliated PO 00000 Frm 00008 Fmt 4700 Sfmt 4700 organizations were certified. Some incumbent unions chose to disclaim representation when faced with a potential challenge rather than go to an election. Based on its chart, the TTD states since 1998, a total of 43 individuals or ‘‘likely straw men’’ filed applications and in 27 of those elections, the incumbent representative was ‘‘effectively decertified’’ since either no representation won or the individual was certified.6 The TTD also states that since 1998, 51 small unaffiliated organizations, which it terms ‘‘potential straw men’’ have filed applications and of those elections, 11 resulted in no representative being certified and 19 resulted in the small unaffiliated organization being certified. The TTD also concedes that some of those small unaffiliated organizations ‘‘may have continued as a representative.’’ The Board agrees that these statistics show that employees change representation or successfully use the straw man procedure to become unrepresented.7 However, these statistics provide no evidence regarding how many employees find the straw man process too confusing, or are unable to find someone willing to face hostility from union supporters and be the straw man or can convince enough of their fellow employees to sign cards authorizing an 6 From 1998 to 2018, the Board held 695 representation elections. 7 The TTD states that if the ‘‘NPRM is adopted, the Board will have three avenues for employees to become unrepresented’’ but only one way to get representation. The Board disagrees with this statement. These three avenues referred to appear to be the existing straw man procedure, the proposed direct decertification, and disclaiming representation. Once the NPRM is adopted, the Board believes that employees who wish to decertify will use the proposed direct procedure rather than the straw man. This will be apparent by authorizations indicating the employees no longer wish to be represented. As previously discussed, employees are free to seek to have an individual coworker represent them under the Act. Finally, the Board has no control over when or under what circumstances a certified bargaining representative disclaims interest in the craft or class. That decision rests with the certified representative. As the TTD points out, some certified representatives do it when they realize they have lost majority support in the craft or class. In addition, in the public debate surrounding this rulemaking, some commenters have characterized one union seeking to take over an already organized work group (i.e. raiding) as decertification. In the Board’s view this is incorrect. Unions have filed applications to represent crafts or classes that are already organized. Under the RLA, some large employee groups are represented by independent unions not covered by the AFL–CIO’s anti-raiding provisions. The Board recognizes that employees can and do desire a change in representation. These elections may result in the incumbent retaining representation, the raiding union winning representation or, on occasion, the loss of representation entirely. Again, these elections outcomes are outside the Board’s control and reflect the exercise of employee free choice. E:\FR\FM\26JYR1.SGM 26JYR1 Federal Register / Vol. 84, No. 144 / Friday, July 26, 2019 / Rules and Regulations jbell on DSK3GLQ082PROD with RULES individual to represent them when they really don’t want representation in the first place. In representation disputes, the Board’s interest is that the dispute is resolved and the result reflects the free and uncoerced choice of a majority of the craft or class. Whether employees choose representation or reject representation is up to them, not the Board. What does matter to the Board is whether the election process allows them to freely exercise their right to choose; and the Board believes the current proposal to eliminate the straw man and allow direct decertification will better effectuate employees’ right to choose. When representation is desired by the employee group, the existence of a direct decertification process clearly broadcasts that the chosen representative does indeed hold the power to negotiate and advocate for the work group. In comments supporting the proposal, the NRLC pointed out that ‘‘if anything, the proposed rule strengthens an incumbent union by confirming that the union continues to enjoy the support of a majority of employees.’’ C. Effect of the Proposed Change on Stability The Board agrees about the value of stability in the air and rail industry, as defined as a lack of disruptions caused by strikes and work stoppages. The Board’s ‘‘almost interminable’’ mediation processes is given much of the credit for preventing disruptions to interstate commerce. Detroit & Toledo Shore Line R.R. Co. v. United Transp. Union, 396 U.S. 142, 149 (1969). The Board also notes that the statutory showing of interest requirement contributes to stability, because the statute requires a valid showing of interest from 50 percent of the craft or class to trigger a representation election and there is system-wide representation under the RLA. As the NLRC noted in its comment, ‘‘[d]ecertification elections on the large Class I carriers have been rare, to say the least. Any suggestion that the contemplated changes to the current rules will generate a massive upsurge in decertification campaigns is, at best, speculative.’’ The Board will not predict the choices employees will make in the future, but it must act to facilitate the statutory mandate of free choice of representation, rather than forced unionization for the sake of stability. The Board’s representation process is the predicate to establishing a collective-bargaining relationship, but the statute mandates that the choice to VerDate Sep<11>2014 16:08 Jul 25, 2019 Jkt 247001 become represented or unrepresented is the employees’ decision and theirs alone. The Russell court rejected the Board’s contention the employee free choice in representation election was subordinate to the RLA’s purpose of avoiding work stoppages through collective representation and bargaining. While the court agreed that the RLA encourages collective bargaining as the mode by which disputes are to be settled and work stoppages avoided, the Act does not compel employees to choose collective representation. Russell, 714 F.2d 1332 at 1344. Employees under the RLA have complete independence to organize or not to organize and this necessarily includes the right to reject collective representation. Id. D. Effect of the Proposed Change on Interference by Carriers or Outside Interest Groups Commenters opposed state that the NPRM creates an increased risk of carrier interference in representation disputes. The AFA stated that the NPRM will embolden an employer to inject itself into the decertification process. IAM states that the proposed rule ‘‘would no doubt embolden outside organizations funded by employer groups or interests in ways that are opaque to both the Board and employees, to seek to decertify elected officials.’’ The TTD states that, without a straw man, there will be no identified individual to be held accountable throughout the process, and carriers will be ‘‘emboldened to interfere in the election process by hiding behind the relative anonymity of the Board’s new proposed decertification applications.’’ The Board’s proposed rule change does not eliminate accountability. As previously discussed, the Board cannot and is not changing who is allowed by statute to invoke its services to resolve a representation dispute. Further, an employee will still be required to file an application to seek decertification under the NPRM, as is clearly stated in the new Section 1206.5. The employee filing the application will still be the responsible party during the representation process as they are now. The difference is that a straw man will no longer be required. Instead, the ballot will be limited to the incumbent representative, the no representation option, and the write-in option. The RLA protects the right of employees to select their representatives without carrier influence or interference. The Board has long held that actions or activity by a carrier that fosters, assists, or dominates an applicant may result in dismissal of a PO 00000 Frm 00009 Fmt 4700 Sfmt 4700 35985 representation application because the authorizations are tainted, N. Air Cargo, 29 NMB 1 (2001), or disqualify the applicant as an employee representative, Mackey Int’l Airlines, 5 NMB 220 (1975).8 There is nothing in the NPRM that suggests the Board would or intends to abrogate its duty to protect the right of employee to be free from carrier interference in their choice of whether to get or reject representation, and indeed we do not do so in this final rule. E. Time Limit on Decertification Applications Unlike the NLRA,9 the RLA does not place any time limits on when applications to investigate representation disputes can be filed. The Board, however, has adopted time limitations on the filing of applications for the same craft or class on the same carrier. Under Section 1206.4(a), the Board will not accept an application filed within two years of the certification of a collective bargaining representative. Under Section 1206.4(b), the Board will not accept an application filed with one year of the dismissal of an application. As discussed below, the Board has modified these time limits several times in order to strike the appropriate balance between employees’ organizational rights, labor stability, and the disruptive effect in the workplace from frequent elections. Prior to 1947, following a certification, it was ‘‘the policy of the Board not to conduct repeat elections until the organization certified has had a reasonable period to function as the duly authorized representative of employees.’’ 13 NMB Ann. Rep. 4 (1947). This reasonable period was one year. In the NMB’s 1947 Rulemaking, this period was extended to two years. 12 FR 3083 (May 10, 1947). The Board stated that the ‘‘policy of the Board in this connection derives from the law which imposes upon both carriers and employees the duty to exert every reasonable effort to make and maintain agreements. Obviously, this basic purpose of the law cannot be realized if the representation issue is raised too frequently.’’ 13 NMB Ann. Rep. 4. The Board observed that many representation disputes arose out of the competition between labor organizations. Id. In 1954, the Board revised its rules to impose a one year 8 See also Great Lakes Airlines, 35 NMB 213 (2008); Virgin Atlantic Airways, 24 NMB 575 (1997). 9 Section 9(c)(3) of the NLRA precludes the holding of an election in any bargaining unit in which a valid election was held during the preceding 12-month period. 29 U.S.C. 159(c)(3). E:\FR\FM\26JYR1.SGM 26JYR1 jbell on DSK3GLQ082PROD with RULES 35986 Federal Register / Vol. 84, No. 144 / Friday, July 26, 2019 / Rules and Regulations limitation on the filing of applications for the same craft or class on the same carrier where (1) the election resulted in no representative being certified; (2) the application was dismissed by the Board on the grounds no representation dispute existed; 10 or (3) the applicant withdrew the application after it was formally docketed. 19 FR 2121 (Apr. 13, 1954). In making this change, the Board stated that ‘‘representation campaigns and the organizing campaigns which necessarily precede them cause unsettled labor conditions and, in many cases, disturb employees substantially in the discharge of their duties. It is contemplated that the [rule change] will prevent hasty refiling of applications which have previously been dismissed by the Board.’’ 20 NMB Ann. Rep. 10 (1954). The 1954 rule contained a proviso that the three conditions would ‘‘not apply to employees of a craft or class who are not represented for purposes of collective bargaining.’’ 19 FR 2121. The effect of the proviso was to exempt applications pertaining to unrepresented employees from the filing time limitations. 45 NMB Ann. Rep. 10 (1979). Thus, in cases where unrepresented employees chose to remain unrepresented, there was no time limitation whatsoever and a new election could be sought the very next day. In 1979, the Board amended Section 1206.4 to make the time limits applicable regardless of whether or not the employees covered by the application are represented for purposes of collective bargaining. Id. The Board did not change the existing time limits of a two year bar post-certification and a one year bar following dismissal on the three enumerated grounds. Comments opposed to applying the time limits to all NMB representation applications regardless of whether the employees involved were represented or unrepresented asserted that the bar rules could be used to frustrate employee organization, for example, if an applicant dominated by a carrier filed to frustrate a legitimate organization. In response, the Board stated that the language in Section 1206.4 providing an exception to the time limits ‘‘in unusual or extraordinary circumstances,’’ would allow the Board to remedy a company dominated union situation as well as ‘‘an election which was improperly affected by a carrier or other interference at some stage of the proceeding.’’ 44 FR 10602 (Feb. 22, 1979). Thus, the Board has expanded the time limitations placed on 10 Generally, when the applicant had failed to support the application with a sufficient valid showing of interest. VerDate Sep<11>2014 16:08 Jul 25, 2019 Jkt 247001 applications several times to balance the statutory right of freedom of choice in organizing with the need for labormanagement stability and to avoid undue disruption to the workplace from continual representation elections. Commenters opposed to the two year limitation following decertification, including the IBT, the IAM, the TTD, the AFA, the Association of Professional Flight Attendants, the Allied Pilots Association, and some Members of Congress, contend that the proposed change is an unwarranted, unjustified, and impermissible restriction on employees’ right under the RLA to organize and bargain collectively through representatives of their own choosing. The Board disagrees. As the foregoing discussion establishes, the NMB has both placed time limitations on the filing of applications and expanded those limitations based on considerations of labor stability and disruption to the workplace. All of these limitations—including the current two year limitation post-certification— represent a degree of restriction on employees’ exercise of their right to choose or reject collective bargaining representatives. And all of these limitations reflect an exercise of the Board’s discretion to balance competing interests. The proposed change reflects the Board’s belief that both certification and decertification are significant undertakings by employees with a substantial impact on the workplace and employees’ relationship with their employer. This belief is supported by the comments of Ronald Doig, an employee who successfully led a decertification effort using the current straw man procedure. According to Mr. Doig, [w]hen we were successful in the election and voted the Teamsters out [the NMB’s time limits on applications] only allowed one year before there could be another election. If the Teamsters had prevailed and won the election, they would have been granted two years before another election could take place. The difference [in time limits] is unfair. The Teamsters never let up, continuing their campaign and we never really got the chance to fully enjoy the benefits of a direct relationship with our company. Our workplace remained in a state of distraction the entire year after the election which led to another election that the Teamsters won. To this date we are still in a state of distraction and I believe had we had the same two years the unions get we would have achieved a stability through a direct relationship. Employees who have exercised their right to reject representation deserve a period of repose to transition to that direct relationship and experience their workplace without a collective PO 00000 Frm 00010 Fmt 4700 Sfmt 4700 representative. This period of time allows employees to judge the advantages and disadvantages of their decision without the turmoil of an immediate organizing campaign. Commenters opposed to the proposed change to have the two year limitation in Section 1206.4(a) apply to decertification as well as certification assert that the change is unwarranted and the Board draws an improper parallel between certification and decertification. The commenters opposed state that the two year limitation post-certification is justified by the need for a newly certified representative to be afforded an insulated period to bargain for an initial contract and if necessary participate in mediation before its representative status is challenged. 11 The Board has not sought to alter this two year period post-certification and views it as an appropriate balance between the goal of labor stability and the statutory obligation to facilitate free choice in representation or rejection of representation. The proposed rule change does not affect this limitation. Rather the proposed change recognizes that the transition from represented to unrepresented has a significant impact on the employees and their workplace. The current two year limitation gives the union a chance to demonstrate the value of its services to the employees who elected it. After decertification wherein the majority of employees chose to reject representation, it is only fair to give employees a chance to experience the effects of their choice on their workplace. If a union has become decertified, it is because a majority of the employees in the craft or class have decided that that they no longer want that representative. The RLA encourages collective bargaining between employee representative and the employer, but it gives employees the absolute right to choose to reject representation. The Board is simply giving employees who have rejected representation an additional year to experience their workplace and their direct relationship with their employer before another representation dispute can be raised in their work group. The two year 11 The Board does note that the two year limitation applies not only to newly certified representatives negotiating first contracts, but to all certifications, even to an incumbent union surviving a raid by another union, Pinnacle Airlines, 35 NMB 1 (2007), or a decertification attempt, Youngstown & N. R.R. Co., 7 NMB 132 (1979). The two year limitation also applies to certifications without an election as a result of a merger of carriers, United Air Lines/Cont’l Airlines, 39 NMB 167 (2011); Tex. Mexican Ry. Co., 27 NMB 302 (2000). E:\FR\FM\26JYR1.SGM 26JYR1 jbell on DSK3GLQ082PROD with RULES Federal Register / Vol. 84, No. 144 / Friday, July 26, 2019 / Rules and Regulations limitation is on the time to file an application. Since the authorization cards can be dated by employees up to one year from the date of the filing of the application, employees, if they so choose, can begin organizing a year after decertification. Commenters in support of the rule noted that without this rule change, organizing can begin the day after an election which results in a decertification, and employees are afforded no period of repose at all. A former practitioner and advocate before the NMB opposed to the proposed change states in his comment that a two year limitation ‘‘neither applies to the NMB ‘indirect’ decertification process nor to any decertification provisions in other federal statutes or regulations.’’ The Board does not find these arguments persuasive. As previously discussed the RLA makes no provision regarding limitations on applications. These rules have been, and remain, an exercise of the Board’s discretion. The Board notes that it is equally true that a two year limitation following certification is not provided in other federal statues or regulations. Under the NLRA, the period of repose is at least one year for certification or decertification. Under the FLRA, the election bar is also one year for certification or decertification. NMB also applies a two year limitation regardless of whether the certification is a newly certified representative or the certification of an incumbent union following a raid or merger. Further, under the current indirect decertification, if a straw man is certified, the Board applies the two year limitation. If that straw man does not formally disclaim interest, an application for that same craft or class of employees at the same carrier would not be accepted by the Board for two years following the certification. Under the proposed rule change, the additional time limit on applications will be limited to applications seeking to decertify an incumbent representative. It would be clear upon filing of the application that the intent of employees is to seek decertification. As discussed above, such an application filed by an employee or group of employees will be supported by a showing of interest stating that employees no longer wish to be represented by their incumbent union. A decertification election will be held where only the incumbent union, the no representation option, and the write-in would appear on the ballot. If a majority of employees vote for representation or if a majority of employees vote for no representation, there will be a two year limitation on applications seeking to VerDate Sep<11>2014 16:08 Jul 25, 2019 Jkt 247001 represent the same craft or class at the same carrier. If the incumbency of an organization is challenged in a raid—by another organization or individual seeking to represent that craft or class— and, in the election a majority of employees fail to vote for representation, the one year limitation will continue to apply as it will if a currently unrepresented employee group does not vote for representation. IV. Conclusion Based on the rationale in the proposed rules and this rulemaking document, the Board hereby adopts the provision of the proposal as a final rule with the clarification in the text of Section 1203.2 in the final rule to require that an employee may file a decertification application. This rule will apply to applications filed on or after the effective date. Dissenting Statement of Chairman Puchala Chairman Puchala dissented from the action of the Board majority in adopting this rule. Her reasons for dissenting are set forth below. Congress enacted the Railway Labor Act (RLA or Act), 45 U.S.C. 151, et seq., to create a comprehensive statutory scheme to prevent disruptions of interstate commerce through the prompt resolution of labor disputes between rail and air carriers and their employees. In Virginia Railway Co. v. System Federation No. 40, the Supreme Court articulated the purposes and objectives of the Act in terms of the duty to bargain, noting that the RLA’s ‘‘major objective is the avoidance of industrial strife, by conference between the authorized representatives of employer and employee,’’ and its ‘‘provisions are aimed at the settlement of industrial disputes by the promotion of collective bargaining between employers and the authorized representatives of their employees.’’ 300 U.S. 515, 547–548 (1937). Thus, the RLA is a collective bargaining statute and its underlying philosophy is almost total reliance on collective bargaining for the settlement of labor-management disputes. I dissent from the rule published today because the changes my colleagues have adopted are unnecessary and contrary to the purposes of the Act. In my view, these changes will impede rather than support the mission of the Agency and the objectives of the Act. The National Mediation Board (NMB or Board) administers the RLA, the oldest extant labor relations statute in the United States and it has been remarkably successful in fulfilling its PO 00000 Frm 00011 Fmt 4700 Sfmt 4700 35987 statutory mission of insuring the right of railroad and airline employees to organize into free and independent labor organizations, of assisting labor representatives and carrier management in the prompt settlement of disputes over rates of pay and terms of work, of resolving grievances over the terms of existing contracts, and of accomplishing these aims without the interruption of transportation services essential to interstate commerce. As an initial matter, I note and my colleagues concede, the RLA does not have an express statutory provision for decertification like the National Labor Relations Act (NLRA). From 1935 to 1947, the NLRA also lacked a statutory procedure for decertification. Congress, through the Taft-Hartley Act, provided a statutory mechanism for employees to seek decertification of their current bargaining representative. 29 U.S.C. 159(c)(1)(A). Congress has taken no similar action with regard to the RLA. Not in the 1950 amendments, when Congress referenced the Taft-Hartley Act in adding Section 2, Eleventh to permit the negotiation of union shop agreements. H.R. Rep. No. 81–2111, at 4 (1950). Not in 2012, when Congress provided for a 50% showing of interest in representation applications and mandated specific provisions for run-off elections. FAA Modernization and Reform Act of 2012, Public Law 112–95 (2012 FAA Modernization Act). There have been no changed circumstances since 2012 that would necessitate or justify Board or Congressional action with respect to a decertification rule. In my view, the addition of a direct decertification procedure to the NMB’s representation procedures is a step to be taken by Congress through legislation and not by the Board through rulemaking. While the RLA lacks a statutory decertification procedure, the existing representation procedures allow employees to get representation, change representation, and reject representation. As many of the commenters opposed to the rule observed, the Board already provides a method for employees to decertify their incumbent union. In the 2010 Representation Rulemaking, the NMB declined to reexamine its decertification procedures and noted that its ‘‘existing election procedures allow employees to rid themselves of a representative.’’ 75 FR 26,078. The 2010 Rulemaking allowed employees to affirmatively cast a ballot for ‘‘no union’’ and eliminated the most confusing step in the ‘‘straw man’’ process. 75 FR 26079. The election statistics submitted with the comments of the Transportation Trades E:\FR\FM\26JYR1.SGM 26JYR1 jbell on DSK3GLQ082PROD with RULES 35988 Federal Register / Vol. 84, No. 144 / Friday, July 26, 2019 / Rules and Regulations Department of the AFL–CIO (TTD) demonstrate that employees can and do utilize the existing decertification process to become unrepresented. As the TTD further observed, while Board clearly receives more applications seeking the certification of a representative than the decertification, this represents a longstanding desire of employees in the air and rail industry to have union representation in the workplace rather than a problem with the NMB’s election process. In adopting a two year bar to representation applications following decertification, the majority ignores well-settled Board precedent recognizing the complexities unions face in establishing collective bargaining relationships and concluding labor agreements. The Board has long recognized that labor stability is enhanced by providing a reasonable period of time to establish a collective bargaining relationship. Jet Am., 11 NMB 173 (1984). Instead, my colleagues rely on a false equivalence between certification of a collective bargaining representative and decertification resulting in the return to at will employment. My own experience in various labormanagement capacities has allowed me to witness firsthand the monumental tasks unions face in establishing and maintaining quality representation for their members. This task is compounded by the fact that, under the RLA, unions represent nation-wide crafts or classes, namely all the employees performing the same work for the same employer regardless of their geographic location. This systemwide representation automatically expands the number of regional issues the union must be prepared to address in collective bargaining. Once certified, the union must continue to generate system-wide employee interest in establishing a template of representation that is reflective of member priorities and gives voice to member concerns. The union’s constitution and bylaws, which reflect the rights of individual members, are reviewed and explained. Volunteer employees are appointed and elected to leadership positions on numerous committees including bargaining committees and health and safety committees. Once certified, the union assumes the responsibility to initiate collective bargaining—often counted in years under the RLA—by training volunteers to work with union staff to set the bargaining agenda through a series of member surveys, meetings, and round table discussions. Even before bargaining commences, an elaborate VerDate Sep<11>2014 16:08 Jul 25, 2019 Jkt 247001 communications system is launched to insure internal communications keep members at all work locations informed of the status of collective bargaining. Once a tentative agreement is reached, it must be reviewed and approved by the members. The ratified contract is enforced by a grievance procedure with an arbitration clause designed to protect individual and collective rights. In the rail and airline industries, a safety culture is promoted by the union through joint labor and management initiatives as well as separate union sponsored health and safety programs. Union activities are designed to promote the workers’ agenda by creating opportunities for management to hear members’ voices on workplace issues. This dialogue at labor-management meetings creates opportunities for both labor and management to improve the relationship and create ideas that further the goals of both parties. These obligations of bargaining and resolving grievances are all part of the statutory framework that Congress created. Section 2, First of the RLA states, It shall be the duty of all carriers, their officers, agents, and employees to exert every reasonable effort to make and maintain agreements concerning rates of pay, rules, and working conditions, and to settle all disputes, whether arising out of the application of such agreements or otherwise, in order to avoid any interruption to commerce or to the operation of any carrier growing out of any dispute between the carrier and the employees thereof. 45 U.S.C. 152, First. The Act’s emphasis is on the full acceptance of that bilateral relationship and the free exercise of both parties’ rights in determining rates of pay, rules, and working conditions with the duty imposed to seek to avoid interruptions to commerce. What happens when an incumbent union is decertified? The carrier develops and implements the rules of the workplace. It may voluntarily seek employees’ views and participation on workplace issues, but is not required to do so. The union and its former members lack standing to bargain and maintain contracts and initiate and progress grievances. All rights reflected in the collective bargaining contracts are extinguished unless required by law or regulation. Following decertification, obligations are removed rather than assumed. There is no longer an obligation to bargain. There is no longer an obligation to administer or enforce a collective bargaining agreement. There is no role for the NMB in mediation. And in my view, there is no statutory basis for imposing an administrative restriction of two years on employees’ freedom to PO 00000 Frm 00012 Fmt 4700 Sfmt 4700 choose a representative following a decertification election that results in no representative. A one year election bar is sufficient for employees to witness the loss of their collective bargaining rights and the loss of stability that accompanies that forfeiture. I believe it is punitive to deny access to RLA election procedures for two years given the increasing number of furloughs in the freight rail industry as carriers move to a new business model and as airline employees contend with the residual effects of widespread bankruptcies, mergers, and reorganizations. The negative consequences of decertification and stripping employees’ collective bargaining rights goes beyond the potential loss of wage growth 12 to a lack of ability to protect negotiated provisions for health and retirement benefits, seniority rights that determine work hours and location, and furlough protections that give employees rights to return to their former positions. The rail and airline industries have a union density rate of 60–80% that I believe is largely due to a long history of negotiating protections for those actively employed as well as retirees. The two year election bar which dictates a two year break in collective bargaining is also bad public policy. The RLA is designed to avoid interruption of interstate commerce. The primary tool the NMB uses to protect the public from interruptions of service is mandatory mediation of collective bargaining agreements between unions and air and rail carriers. This is why the RLA is predisposed to promote collective bargaining. This governmental exercise of control over the labor-management relationship requires disputing parties to enter NMB mandatory mediation for an ‘‘almost interminable’’ amount of time before either party can exercise self-help. Detroit & Toledo Shore Line R.R. Co. v. United Transp. Union, 396 U.S. 142, 149 (1969). A series of additional steps, a 30 day cooling-off period, a potential Presidential Emergency Board that recommends settlement terms followed by additional cooling off periods, and finally intervention by Congress under the Commerce Clause of the Constitution are all designed to promote the public’s interest to avoid interruption of interstate commerce. 12 According to the Bureau of Labor Statistics non-union workers only make 82% of what union workers are paid. U.S. Dep’t of Labor, Bureau of Labor Statistics, Economic News Release, USDL– 19–0079 (Jan. 18, 2019), https://www.bls.gov/ news.release/union2.htm. E:\FR\FM\26JYR1.SGM 26JYR1 Federal Register / Vol. 84, No. 144 / Friday, July 26, 2019 / Rules and Regulations Consequently, I disagree with the Board majority’s decision to make this change. Chairman Linda Puchala. 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. PART 1206—HANDLING REPRESENTATION DISPUTES UNDER THE RAILWAY LABOR ACT 3. The authority citation for part 1206 continues to read as follows: ■ Authority: 44 Stat. 577, as amended; 45 U.S.C. 151–163. 4. Amend § 1206.1 by revising paragraph (b) to read as follows ■ List of Subjects § 1206.1 29 CFR Part 1203 Air carriers, Labor management relations, Labor unions, Railroads. * Run-off elections. PART 1203—APPLICATIONS FOR SERVICE * * * * (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. * * * * * ■ 5. Amend § 1206.2 by revising paragraph (a) to read as follows: 1. The authority citation for part 1203 continues to read as follows: § 1206.2 Percentage of valid authorizations required to determine existence of a representation dispute. 29 CFR Part 1206 Air carriers, Labor management relations, Labor union, Railroads. For the reasons stated in the preamble, the National Mediation Board amends 29 CFR parts 1203 and 1206 as set forth below: ■ Authority: 44 Stat. 577, as amended; 45 U.S.C. 151–163. ■ 2. Revise § 1203.2 to read as follows: § 1203.2 Investigation of representation disputes. jbell on DSK3GLQ082PROD with RULES 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 employee seeking certification, or the name of the employee 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 by the invoking employee. These disputes are given docket numbers in the series ‘‘R’’. 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 VerDate Sep<11>2014 18:50 Jul 25, 2019 Jkt 247001 (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. * * * * * ■ 6. Amend § 1206.4 by revising paragraph (a) to read as follows: PO 00000 Frm 00013 Fmt 4700 Sfmt 4700 § 1206.4 35989 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 * * * * * § § 1206.5 through 1206.7 [Redesignated as §§ 1206.6 through 1206.8] 7. Redesignate §§ 1206.5 through 1206.7 as §§ 1206.6 through 1206.8 and add new § 1206.5 to read as follows: ■ § 1206.5 Decertification of representatives. Employees who no longer wish to be represented may seek to decertify the current representative of a craft or class in a direct election. The employees must follow the procedure outlines in § 1203.2. Dated: July 23, 2019. Mary L. Johnson, General Counsel. [FR Doc. 2019–15926 Filed 7–25–19; 8:45 am] BILLING CODE 7550–01–P DEPARTMENT OF LABOR 29 CFR Part 1952 Occupational Safety and Health Administration [Docket ID. OSHA 2014–0019] RIN 1218–AC92 Arizona State Plan for Occupational Safety and Health Occupational Safety and Health Administration, Labor. ACTION: Reconsideration of final approval of state plan; withdrawal. AGENCY: SUMMARY: OSHA is withdrawing its proposed reconsideration of the Arizona State Plan’s final approval status. DATES: July 26, 2019. FOR FURTHER INFORMATION CONTACT: For press inquiries: Francis Meilinger, OSHA Office of Communications, U.S. Department of Labor, Washington, DC 20210; telephone (202) 693–1999; email: meilinger.francis2@dol.gov. For general and technical information: Douglas J. Kalinowski, Director, OSHA Directorate of Cooperative and State Programs, U.S. Department of Labor, Washington, DC 20210; telephone: (202) 693–2200; email: kalinowski.doug@dol.gov. SUPPLEMENTARY INFORMATION: On August 21, 2014, OSHA published a Federal Register document proposing to reject Arizona’s residential construction fall E:\FR\FM\26JYR1.SGM 26JYR1

Agencies

[Federal Register Volume 84, Number 144 (Friday, July 26, 2019)]
[Rules and Regulations]
[Pages 35977-35989]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2019-15926]


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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: Final rule.

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SUMMARY: The National Mediation Board (NMB or Board) is amending 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 by 
protecting employees' right to complete independence in the decision to 
become represented, to remain represented, or to become unrepresented. 
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: The final rule is effective August 26, 2019.

FOR FURTHER INFORMATION CONTACT: Mary Johnson, General Counsel, 
National Mediation Board, (202) 692-5040, [email protected].

SUPPLEMENTARY INFORMATION:

I. Background

    The Railway Labor Act (RLA or Act), 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 its statutory mission to investigate 
representation disputes ``among a carrier's employees as to who are the 
representatives of such employees.''
    Under Section 2, Ninth of the RLA, it is the duty of the NMB 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. The RLA also authorizes the NMB to 
hold a secret ballot election or employ ``any other appropriate 
method'' to ascertain the identity of duly designated employee 
representatives. Id.
    Unlike the National Labor Relations Act (NLRA), 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 Ry., 
Airline & S.S. Clerks v. Ass'n for the Benefit of Non-Contract Emps., 
380 U.S. 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 (1934)). The 1934 House 
Report on the 1934 amendments to the RLA states with regard to Section 
2, Ninth, ``[i]t provides that employees shall be free to join any 
labor union of their choice and likewise be free to refrain from 
joining any union if that be their desire.'' H.R. Rep. 73 No. 1944 at 
2. In Int'l Bhd. of Teamsters v. Bhd. of Ry., Airline & S.S. Clerks, 
402 F.2d 196, 202 (1968) (BRAC), the United States Court of Appeals for 
the District of Columbia

[[Page 35978]]

(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.''
    Nonetheless, prior to 1983, the Board would dismiss without an 
election an application filed pursuant to Section 2, Ninth if the NMB 
determined that the applicant did not ``intend to represent'' the craft 
or class in collective bargaining under the Act. In Atchison, Topeka & 
Santa Fe Ry. Co., 8 NMB 66 (1980), the NMB dismissed the application 
filed by J.D. Blankenship because the authorization cards did not 
authorize him to act as the representative of the craft or class for 
purposes of representation under the RLA, but instead authorized him to 
decertify the incumbent union. The Board stated that ``such cards are 
not valid for purposes of Section 2, Ninth, to provide a showing of 
interest.'' Id. at 70. In Atchison, Topeka & Santa Fe Ry. Co., the 
Board dismissed an application supported by cards authorizing Laurence 
G. Russell to represent the craft or class in collective bargaining 
under the RLA when the NMB became aware that Mr. Russell intended to 
negotiate an agreement to terminate the existing collective-bargaining 
agreement and ``thereafter refrain from engaging in further 
representation of employees.'' 8 NMB 469, 472 (1981). Even if an 
individual seeking to decertify succeeded in winning the election and 
attempted to disclaim representation, the Board would refuse to process 
the disclaimer if it was filed too close in time to the certification. 
In that circumstance, the Board would consider the disclaimer as 
``clear and compelling evidence'' that the prior election was not a 
true representation dispute, was in fact ``designed to frustrate the 
purposes of the Act, and would void the prior election restoring the 
certification of the incumbent union. See Mfrs. Ry. Co., 7 NMB 451 
(1980).
    The Board's position and refusal to act was soundly rejected as a 
breach of ``its clear statutory mandate'' in the Fifth Circuit's 
decision in Russell v. NMB, 714 F.2d 1332 (1983) (Russell), finding 
that ``employees have the clear right under the Act to opt for 
nonrepresentation.'' In Russell, the Court held that employees have 
complete independence under the Act to select or reject a collective 
bargaining representative, and the NMB could no longer refuse to 
process a representation application after it determined the applicant 
intended to terminate collective representation if certified. Since 
Russell, however, employees who no longer wish to be represented must 
still follow an unnecessarily complex procedure to obtain an election.
    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, e.g., 
``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 a card authorizing him to represent 
them. Thus, in order to become unrepresented, employees are required to 
first sign an authorization card to have a straw man step in to 
represent them. In the resulting election, the ballot options will 
include the names of the current representative; John Smith, the straw 
man applicant; ``no union;'' and an option to write in the name of 
another representative. To decertify, employees have to vote for John 
Smith, the straw man, with the understanding that if certified, he will 
disclaim representation, or vote for no representation.\1\ Although 
voters selecting the straw man and the ``no union'' option may both 
desire nonrepresentation, their votes are not aggregated.
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    \1\ In 2010, the Board changed its representation election 
procedures to certify a representative based on a majority of 
ballots cast. 75 FR 26062 (May 11, 2010) (2010 Representation Rule). 
Previously, an individual or organization had to receive votes from 
a majority of all eligible voters in the craft or class and the only 
way to vote for no representation was to abstain from voting. Thus, 
in order to decertify, after soliciting a showing of interest from 
fellow employees indicating their desire to have the straw man 
represent them for collective bargaining under the RLA, the straw 
man had to convince those same employees to either abstain from 
voting in the subsequent election so that the union would not obtain 
a majority, or vote for him with the understanding he would 
disclaim.
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    On January 31, 2019, the NMB published a Notice of Proposed 
Rulemaking (NPRM) in the Federal Register inviting public comment for 
60 days on a proposal to amend its RLA rules to provide a 
straightforward procedure for decertification of representatives. 84 FR 
612. Under the Board's proposed procedure 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 Board further proposed eliminating the straw man representation 
choice from the ballot in decertification elections. Once it is 
determined that the showing of interest is valid and that at least 50 
percent of the craft or class no longer wish to be represented by their 
current representative, the Board will authorize an election with the 
incumbent and the no representation option, along with a write-in 
option, appearing on the ballot. The applicant's name will not appear 
on the ballot since the representation dispute is whether the employees 
in the craft or class want to continue to be represented by the 
incumbent union. The Board's existing run-off rules will continue to 
apply.
    In the NPRM, the Board noted that, while employees have the ability 
to decertify a representative under the RLA, the current straw man 
process is unnecessarily complex and convoluted. There is no statutory 
basis for the additional requirement of a straw man where employees 
seek to become unrepresented. The NMB noted the legislative history and 
court precedent that, under the RLA, employees have complete 
independence to be free to reject representation, as they are free to 
join any labor organization of their own choosing. 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).
    In the NPRM, the Board also stated its belief that 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, changes in the 
employee-employer relationship that occur when employees become 
represented, change representative, or become unrepresented require 
similar treatment. Accordingly, the Board proposed extending the two 
year time limit on applications in Section 1206.4 to decertification as 
well as certifications. The other time limits on

[[Page 35979]]

applications set forth in Section 1206.4 will remain unchanged.
    Subsequently, on March 1, 2019, the NMB published a Notice of 
Meeting in the Federal Register inviting interested parties to attend 
an open public hearing with the Board to share their views on the 
proposed rule changes regarding the proposed decertification procedure. 
84 FR 6989.

II. Notice-and-Comment Period

    In response to the NPRM, the NMB received 32 submissions during the 
official comment period from a variety of individuals, employees, trade 
associations, labor unions, Members of Congress, advocacy groups, and 
others. (Comments may be viewed at the NMB's website at (http://www.nmb.gov). Additionally, the NMB received written and oral comments 
from nine individuals and representatives of constituent groups under 
the RLA that participated in the March 28, 2019 open public hearing.
    All of the comments reflected 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. 
The commenters supporting the Board's proposed change stated that the 
proposal was clearly authorized by the statute and that it would 
simplify an unnecessarily complex procedure. In its comment in support 
of the NPRM, the National Railway Labor Conference (NRLC) stated that 
the ``Board's proposal is modest and sensible and strikes the proper 
balance between stability of labor relations--which is critical to the 
railroads--and the statutory right of employees `to determine who shall 
be the representative of the craft or class''' under Section 2, Fourth 
of the Act. The NRLC noted that there is ``already a decertification 
mechanism under the RLA. Thus, any suggestion that the Board is 
contemplating a significant or unprecedented change in representation 
is hyperbole. The change under consideration is a minor, incremental 
adjustment that will merely make the existing procedure clearer and 
simpler.'' Based on their own experience with the current procedures 
several individuals who had filed applications as the straw man 
expressed strong support for a direct decertification procedure. The 
National Right to Work Legal Foundation (Right to Work) stated that the 
proposed change is ``long overdue,'' and the NPRM is ``needed to ensure 
that all employees have an equal and fair choice regarding union 
representation. The Board has statutory authority to adopt the proposed 
rules, and should do so as soon as possible.'' Americans for Tax Reform 
stated the ``NMB's proposed rule would restore balance and ensure that 
all workers, whether they want union representation or not, are treated 
equally.'' The Competitive Enterprise Institute (CEI) stated that the 
proposed rule would eliminate confusion in the decertification process 
since employees desiring decertification would no longer have to 
recruit a craft or class member to appear on the ballot as the straw 
man or convince a majority of employees to sign authorization cards for 
the straw man while also explaining that this individual is not 
actually going to represent them. Instead, employees would simply 
collect cards in support of no union representation. The proposed 
change, in the view of the CEI, would also protect employees from 
harassment, citing examples of on-line bullying. Rusty Brown of RWP 
Labor stated that ``[a]ll Americans should have the right to 
unionization but should also have the right to remove these unions as 
their bargaining representative through a straightforward and efficient 
means.''
    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.

III. Summary of Comments on the NMB's Proposed Decertification 
Procedure

    Commenters to the Board's proposal to make its current 
decertification procedure more simple and direct expressed widely 
divergent views of the NPRM and the Board's process in formulating the 
NPRM. The Board's response to those comments is as follows.

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

    Some of the comments opposed to the NPRM question whether the NMB 
possesses the statutory authority to make the proposed change. The 
International Association of Machinists and Aerospace Workers, AFL-CIO 
(IAM) \2\ states that ``the Board plainly lacks statutory authority to 
issue this proposed rule. In fact, Congress has expressly forbidden the 
action now proposed.'' While conceding that the RLA neither mentions 
nor requires a decertification procedure, the IAM asserts that the NPRM 
is ``contrary to the plain language of the Act.'' The Transportation 
Trades Department of the AFL-CIO (TTD) asserts that the proposed change 
exceeds the Board's narrow statutory authority to investigate and 
certify employees' choice of a union representative. Since, unlike the 
NLRA, Congress has not amended the RLA to provide an express provision 
for decertification, the TTD states that the current straw man 
procedure is the only method for decertification allowed by Section 2, 
Ninth. One commenter, Deven Mantz, Brotherhood of Maintenance of Way 
Employes Division-IBT North Dakota Legislative Director, stated that 
work groups should only be allowed to change unions, not become ``not 
Union completely.'' The TTD, IAM, Association of Flight Attendants-CWA 
(AFA), and other commenters opposed to the NPRM also suggest that 
Congress' decision to amend the Act to set a 50 percent showing of 
interest requirement for representation disputes under the RLA is 
further evidence that the scope of representation disputes under the 
RLA is limited to applications ``requesting that an organization or 
individual be

[[Page 35980]]

certified as the representative of any craft or class of employees.''
---------------------------------------------------------------------------

    \2\ On April 24, 2019, following the close of the comment 
period, the IAM filed a ``Supplemental Comment'' stating that the 
NPRM is ``motivated at least in part by a broader political 
strategy,'' and requesting that the Board ``exercise its statutory 
authority, . . . maintain its independence from carrier and 
political influences, and cease this rulemaking without issuing the 
proposed rule.'' The basis for this request lies in the IAM's 
Freedom of Information Act (FOIA) Request filed with the Board 
shortly after the publication of the NPRM. The document produced by 
the NMB and relied on by the IAM is one email from a carrier 
representative to Board Member Gerald Fauth urging the Board to 
``think bigger'' than decertification and referencing other 
potential rulemakings by executive branch agencies as well as the 
potential of rulemaking as political strategy as exercised under the 
Obama Administration in 2011. To the extent that the IAM is alleging 
bias, the single received email, which was given no reply, falls 
short of establishing the ``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. FTC, 
627 F.2d 1151, 1154 (D.C. Cir. 1979). IAM does not point to 
statements by Member Fauth or any Member of the Board. Further, 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).
    The IAM also appears to suggest that by proposing this rule 
change, the Board has compromised its neutrality. This suggestion is 
entirely unwarranted. The Board majority followed the mandates of 
the Administrative Procedure Act (APA) in considering, drafting, 
adopting, and promulgating the NPRM. The policy and procedures at 
issue are the Board's own determinations. 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. FCC v. 
Fox Television Stations, Inc., 556 U.S. 502, 515 (2009) (FCC v. 
Fox). Finally, under the APA, the Board's final rule is subject to 
judicial review.
---------------------------------------------------------------------------

    With one exception, most opposing commenters acknowledge that 
employees have the right under the RLA to decertify their 
representative so long as an employee agrees to act as the straw man 
and gathers the requisite showing of interest from their fellow 
employees authorizing the straw man to represent them even though the 
straw man or the employees want to become unrepresented. During the 
election, employees must either vote for no representation or for the 
straw man with the understanding that the straw man will disclaim. The 
commenters opposed to the NPRM essentially argue that the Act compels 
the filing of an application for representation even if the straw man 
applicant, the employees in the craft or class, the incumbent union, 
and the Board all know that the desire of the employees invoking the 
Board's services is an election on the question of whether to remain 
represented. If the Act prohibits decertification, then there can be no 
indirect decertification. But that is not the case.
    As has previously been stated, the RLA makes no mention of 
decertification and it also sets forth no specific procedure for 
representation. Air Transp. Ass'n of Am. v. NMB, 663 F.2d 476, 485 
(D.C. Cir. 2011) (ATA). Section 2, Ninth gives the Board the authority 
to investigate representation disputes and ascertain the identity of 
the employees' representative through a secret ballot election or ``any 
other appropriate method of ascertaining the names of the duly 
designated and authorized representatives.'' The Board is given broad 
discretion with respect to the method of resolving representation 
disputes with the only caveat being that it ``insure'' freedom from 
carrier interference. ABNE, 380 U.S. 650, 668-669 (1965).
    The courts have also long rejected the idea that the absence of a 
decertification provision means the Board has no power to decertify a 
union. Since employees have the right to reject representation under 
the RLA, inherent in the Board's authority to certify a representative 
is the power to certify that a particular group of employees has no 
representative. BRAC, 402 F.2d 196, 202 (D.C. Cir. 1968). In Russell, 
discussed above, the court found that the Board exceeded its statutory 
authority by dismissing a representation application with a valid 
showing of interest because the applicant did not intend to represent 
the craft or class for purposes of collective bargaining, contract 
disputes, and grievances. Rather, if certified, Mr. Russell intended to 
abrogate the contract and disclaim representation. Mr. Russell was the 
straw man and the purpose of seeking an election was the 
decertification of employees' incumbent union. The court found, 
however, that Mr. Russell did intend to represent the employees within 
the meaning of Section 1, Sixth which defines ``representative'' as 
``any person or persons, labor union, organization, or corporation 
designated either by a carrier . . . or by its employees, to act for it 
or them,'' since a majority of the craft or class wanted Mr. Russell to 
take the steps necessary to terminate collective bargaining.\3\ 
Russell, 714 F.2d at 1342. It is clear that the Board has the authority 
and the obligation to accept applications from employees where the 
question concerning representation is whether employees want to reject 
representation.
---------------------------------------------------------------------------

    \3\ The 5th Circuit's decision in Russell further notes that, at 
oral argument, the Board argued that rather than filing the straw 
man application, ``the correct course of action would have been for 
the employees to have petitioned the Board `to hold an election to 
either vote for the current union representative . . . or, 
nonunion.' '' Russell, 714 F.2d at 1342. The court stated that it 
did not see why the Board's suggested procedure was any more or less 
objectionable than Mr. Russell's actions and it was in fact a 
procedure almost identical to the procedure under the NLRA which the 
Board had previously stated ``time and time again as not allowed by 
the RLA.'' Id.
---------------------------------------------------------------------------

    The TTD and other commenters opposed to the NPRM assert that 
Section 2, Twelfth limits the Board's authority under Section 2, Ninth 
and preclude the Board's proposal for direct decertification. The TTD 
argues that the language of Section 2, Twelfth requires that 
applications filed with the NMB under Section 2, Ninth are only those 
``requesting that an organization or individual be certified as a 
representative of any craft or class of employees'' and that ``the 
proposed rule cannot be reconciled with that language.'' The IAM 
asserts that Section 2, Twelfth is an ``additional statutory limit on 
the Board's authority to carry out its authority to make a 
representation determination.'' The Board agrees that Section 2, 
Twelfth places an additional limitation to the Board's authority under 
Section 2, Ninth, but that limitation is simply that once requested to 
investigate a representation dispute, 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 of not less than 50 
percent of employees in the craft or class. Representation Procedures 
and Rulemaking Authority, 77 FR 75545 (Dec. 21, 2012) (2012 NMB 
Rulemaking).
    In the Board's view, the language of Section 2, Twelfth must be 
read in the context of Section 2, Fourth, which gives the majority of 
any craft or class the right to determine who their representative 
shall be, and Section 2, Ninth, which places an affirmative duty to 
determine the employees' choice of a representative when a 
representation dispute exists; the dispute is among a carrier's 
employees; and one of the parties to the dispute has requested the 
Board's services. See Ry. Labor Execs' Ass'n v. NMB, 29 F.3d 655, 666-
67 (D.C. Cir. 1994) (RLEA). Section 2, Twelfth does not require 
employees or their representative to pretend to seek certification in 
order to vindicate their statutorily protected right of complete 
independence in the choice to be represented or be unrepresented.
    The FAA Modernization and Reform Act of 2012, Public Law 112-95 
(2012 FAA Modernization Act), contained, inter alia, several amendments 
to the RLA \4\ including the addition of Section 2, Twelfth. Section 2, 
Twelfth titled ``Showing of interest for representation elections,'' 
provides that the Board,
---------------------------------------------------------------------------

    \4\ In addition to Section 2, Twelfth, the 2012 FAA 
Modernization Act amended Section 2, Ninth to direct a run-off 
election when no ballot option receives a majority in an election 
with three or more choices (including the no representation option). 
The run-off election is between the two ballot options that the 
largest and the second largest number of votes. The amendments also 
added a provision regarding the Board's rulemaking authority and 
provided for an audit of the NMB's programs and expenditures by the 
Comptroller General, discussed infra.

upon receipt of an application requesting that an organization or 
individual be certified as the representative of any craft or class 
of employees, shall not direct an election or use any other method 
to determine who shall be the representative of such craft or class 
unless the Board determines that the application is supported by a 
showing of interest from not less than 50 percent of the employees 
---------------------------------------------------------------------------
in the craft or class.

45 U.S.C. 152, Twelfth.
    Prior to these amendments, the showing of interest requirements 
needed to support an application under Section 2, Ninth invoking the 
Board's services to investigate a representation dispute among a 
carrier's employees were established by the exercise of the Board's 
discretion and not defined by statute. The NMB's Rules provided that an 
individual or organization needed to support their application with 
authorization cards from thirty-five percent of the craft or class if 
those employees were unrepresented and authorization cards from more 
than fifty percent of the craft or class if those employees were 
already represented. 29 CFR 1206.2. An intervening individual

[[Page 35981]]

or organization needed a thirty-five percent showing of interest to get 
on the ballot. 29 CFR 1206.5.
    The NMB has consistently interpreted the language of Section 2, 
Twelfth as requiring a valid showing of interest of 50 percent for any 
application invoking its services to resolve a representation dispute. 
In its 2012 rulemaking to modify its rules to reflect the amended 
statutory language, the Board rejected arguments that Section 2, 
Twelfth did not apply to applications resolving the representation 
consequences of mergers of two or more carriers. The Board stated 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 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.

2012 NMB Rulemaking, 77 FR 75545. Prior to the 2012 FAA Modernization 
Act, the Board had one application with different showing of interest 
requirements. With Section 2, Twelfth, Congress determined that the 
Board must require the same showing of interest for any application.
    The Board finds further support for its position in the Conference 
Report for the 2012 FAA Modernization Act (Conference Report). The most 
dispositive indicator of legislative intent is the conference report. 
United States v. Commonwealth Energy Sys., 235 F.3d 11, 16 (1st Cir. 
2000). With regard to the NMB, the Conference Report notes that the 
House bill, Section 903, provided for the repeal of the Board's 2010 
Representation Rule, summarized as changing ``standing rules for union 
elections at airlines and railroads, which counted abstentions as votes 
`against' unionizing, to the current rule which counts, only no votes 
as `against unionizing, abstentions do not count either way.'' H.R. 
Conf. Rep. No. 112-381, at 259 (2012). The Senate bill contained ``no 
similar provision.'' Id. The conference action report states that 
repeal of the NMB's representation rule ``was not agreed to by the 
Conference, and is not included in the final bill.'' Id. The conference 
committee did agree, inter alia, to ``amend section 2 of the Railway 
Labor Act by raising the showing of interest threshold for elections to 
not less than fifty percent of the employees in the craft or class.'' 
Id. at 260 (emphasis added). The use of the term ``election'' without 
qualification does not suggest that Congress intended to limit the 
Board's authority to only those requests to certify a representative. 
The 2012 amendments were not intended to limit the types of 
representation disputes among carrier employees to be resolved by the 
Board under Section 2, Ninth. The authority of the NMB to resolve all 
representation disputes--disputes involving employees' right to become 
represented, to change representation, or to become unrepresented--is 
essential to preserve employee free choice. The statutory 
interpretation urged by the TTD, IAM, and other commenters opposed to 
the rule would profoundly alter the Board's core authority under 
Section 2, Ninth.\5\ Congress, however, does not use vague schemes or 
ancillary provisions to alter the fundamental details of a regulatory 
scheme-- it does not, as the adage says, hide elephants in mouse holes. 
Whitman v. Am. Trucking Ass'ns, 531 U.S. 457, 468 (2001); MCI 
Telecomms. Corp. v. AT&T Co., 512 U.S. 218, 231 (1994). The 2012 
amendments were aimed at the Board's discretionary practices applicable 
to all applications, namely the showing of interest requirements and 
the run-off procedures, in response to the Board's decision to change 
the way it counted ballots in all representation elections.
---------------------------------------------------------------------------

    \5\ At best, under a literal reading of Section 2, Twelfth, the 
50 percent showing of interest is applicable only to applications 
seeking certification of an individual or organization and the Board 
is free to adopt a different showing of interest for applications 
for decertification.
---------------------------------------------------------------------------

    In the Board's view, TTD's emphasis on the words ``application 
requesting that an organization or individual be certified as 
representative'' is misplaced. Section 2, Ninth gives the Board broad 
authority to determine employees' choice of representative. As the D.C. 
Circuit has noted, the right of employees to reject representation 
yields the corollary that the Board possesses the implied power to 
certify to the carrier that a craft or class of employees has rejected 
representation. BRAC, 402 F.2d 196, 202 (1968) (citing ABNE, 380 U.S. 
650 (1965)). Following its duty under Section 2, Ninth, the result of 
every NMB representation elections is the official notification to the 
parties and the carrier as to who is the designated representative of 
the craft or class at issue. When employees choose to become 
represented or change representation, the notification is titled a 
``certification.'' When the employees choose to become or remain 
unrepresented, the notification is titled a ``dismissal.''
    Commenters opposed to the NPRM also suggest that the fact that the 
Government Accountability Office (GAO) did not recommend a change to 
the NMB's decertification process and Congress' subsequent inaction is 
tantamount to a Congressional limitation on the Board's statutory 
authority under the RLA. The TTD stated during the hearing that the 
Comptroller General was to make recommendations to the Board and 
appropriate congressional committees regarding actions that may be 
taken by Congress or the Board to ensure that processes are fair and 
reasonable for all parties, and no recommendations were made.
    In fact, Section 165(b) of the 2012 FAA Modernization Act did 
direct GAO to review, evaluate and make recommendations to the Board 
and congressional committees within 180 days of enactment of the law 
regarding the Board's certification procedures. However, that mandate 
was terminated by the three congressional committees of jurisdiction 
within 134 days after the enactment of the law, according to GAO 
documentation. Revae Moran et al., U.S. Gov't Accountability Office, 
GAO-12-835R, ``National Mediation Board Mandates in the FAA 
Modernization and Reform Act of 2012'' (June 27, 2012). The 
congressional committees instead accepted a Congressional Research 
Service report (CRS Report) summarizing the differences between the 
three major federal labor relations laws. See generally Alexandra 
Hegji, Cong. Research Serv., R42526, ``Federal Labor Relations 
Statutes: An Overview'' (May 11, 2012). The CRS Report notes that 
Congress has enacted three major laws that govern labor-management 
relations in the private and federal sectors: the RLA, the NLRA, and 
the Federal Service Labor-Management Relations Statute. The CRS Report 
provides ``a brief history and overview of each of these statutes. It 
also discusses key statutory provisions for each statute.'' Id. at 1. 
The CRS Report's discussion of decertification states that, although 
the NMB does not have a formal procedure for decertifying a union, it 
has ``several practices that effectively remove an incumbent union's 
certification.'' Id. at 8 (citing ABA, ``Selecting a Bargaining 
Representative,'' The Railway Labor Act, 1st Edition, pp. 135-137 
(1995)).
    The Board believes that Congressional termination of this GAO 
research directive and reliance on the CRS

[[Page 35982]]

Report which merely summarized then-current procedure has no effect on 
its statutory authority. Before and after the 2012 FAA Modernization 
Act, the authority to carry out the statutory mandates of the RLA was 
and is delegated by Congress to the Board. No other agency possesses 
this authority and the audit provisions added to the RLA by the 2012 
FAA Modernization Act do not in any way circumscribe this authority.
    45 U.S.C. Section 165(a) provides for the ``audit and evaluation'' 
of the programs and expenditures of the NMB by the Comptroller General. 
An evaluation and audit ``shall be conducted not less frequently than 
every 2 years . . . [or] as determined necessary by the Comptroller 
General or the appropriate congressional committees.'' GAO has 
conducted such an audit of the NMB in 2013, 2016, and 2018. At the time 
of this rulemaking, GAO is conducting the 2020 audit. As discussed 
above, section 165(b), which was terminated, provided for an 
``immediate review of certification procedures.'' This review was to be 
separate from the biannual evaluation and audit and required the 
Comptroller General to review the NMB's process to certify or decertify 
representation to ensure that the processes are fair and reasonable for 
all parties by examining whether the NMB's processes or changes to 
those processes are consistent with congressional intent. The provision 
also required a comparison of the NMB's representation procedures with 
procedures under other state and federal labor statutes including 
justification for any discrepancies.
    The 2013 GAO Report made no recommendations for the changes to the 
NMB's representation processes because it found that that the NMB had 
responded to industry legal challenges and stakeholder disagreements 
and its procedures were consistent with other federal labor relations 
statutes. U.S. Gov't Accountability Office, GAO-14-5, ``Strengthening 
Planning and Controls Could Better Facilitate Rail and Air Labor 
Relations'' (Dec. 3, 2013). The 2013 GAO Report concluded that the 2010 
Representation Rule change ``caused disagreement among some 
stakeholders,'' and, with regard to decertification, the GAO Report 
stated

    Some stakeholders also wanted NMB, as part of the 2010 
rulemaking, to clarify the process for decertifying, or removing, a 
union representative. The RLA does not specify a decertification 
process, and NMB offers minimal guidance on its website on steps to 
remove an employee representative. In its preamble to the 2010 rule, 
NMB noted that, while not as direct as some commenters might like, 
the existing election procedures allow employees to ``rid themselves 
of a representative,'' and that the 2010 change further gives these 
employees the opportunity to affirmatively cast a ballot for no 
representation. However, an airline carrier official and a former 
board member said the process in place remains ineffective and 
highly confusing. For example, a ballot currently may contain two 
options that are each a vote for no representation: ``no 
representative,'' and an applicant who is on the ballot as a ``straw 
man'' who intends, if elected, to step down so as to remove 
representation for the craft or class. This applicant seeking 
removal of representation has to collect sufficient authorization 
cards to prompt an election in order for the craft or class to make 
this change. A former NMB board member said that there is the 
potential for votes opposed to union representation to be split by 
votes for ``no representative'' and for a straw man. The result is 
that these vote counts will not be consolidated in favor of 
decertification, which can then happen only if either the ``no 
representative'' or straw man receives a majority of the votes cast.

Id. at 46. The GAO report also includes a table comparing the NMB to 
the National Labor Relations Board, the Federal Mediation and 
Conciliation Service, and the Federal Labor Relations Authority. Id. at 
11.
    Thus, GAO concluded and Congress accepted the conclusion that the 
NMB's certification and decertification procedures were reasonable and 
consistent with other federal statutes. This conclusion in no way 
precludes the NMB's obligation to make those procedures less complex 
and convoluted in order to better effectuate its statutory mandate.
    Commenters including the TTD, the Southwest Airlines Pilots 
Association, and the AFA, also assert that the Board is exceeding its 
statutory authority by changing the language of 29 CFR 1203.2 to allow 
the investigation of an application to be filed by ``an individual 
seeking decertification.'' These commenters misinterpret the NPRM and 
the Board's intent as, in fact, the Board agrees that the Board may 
investigate a representation dispute only upon the request of the 
employees involved that dispute, or their representative. As the D.C. 
Circuit stated in RLEA, ``[f]or the Board to act otherwise is for the 
Board blatantly to exceed its statutory authority.'' 29 F.3d 655, 665 
(D.C. Cir. 1994). The Board agrees with these commenters that only 
employees or their representatives may invoke the Board's services 
under Section 2, Ninth to resolve a dispute regarding the identity of 
their collective bargaining representative. To make clear the Board's 
intent, the text of Section 1203.2 has been clarified in the final rule 
to require an employee to file a decertification application.
    Under the proposed rule change, an employee must file an 
application asserting that a representation dispute exists among the 
identified craft or class. This application must be supported by a 
valid showing of interest from 50 percent of the craft or class. The 
difference is that the Board will now accept authorizations that 
clearly and unambiguously state the employee's desire to no longer be 
represented by their incumbent union. Such an authorization will 
clearly indicate the intent of the employees and where it is clear that 
the petitioning employees wish to be free of the incumbent 
representative, the Board will authorize an election and the ballot 
will include the incumbent union and the no representation option, 
along with the write-in option. The applicant's name will not be 
included on the ballot because the Board is eliminating once and for 
all the forced pretense that employees are authorizing the applicant to 
represent them.

B. Justification for the Proposed Change

    Almost all of the commenters opposed to the NPRM suggest that the 
Board has not provided an adequate justification for this change. The 
TTD notes that the NMB does not claim any changed circumstances that 
have led it to reevaluate a practice that it has stated is consistent 
with the statute and allows employees an ample opportunity to alter 
their representation. Many of the commenters opposed to the NPRM also 
argue that the Board is somehow bound by prior statements that the 
change is unwarranted. Some commenters point to the 1987 statement that 
it would only make such a change if it was ``required by statute or 
essential to the administration of the Act.'' In re Chamber of 
Commerce, 14 NMB 347, 360 (1987) (Chamber of Commerce). Other 
commenters rely on statements in the 2010 Representation Rule that the 
existing straw man procedure together with the option to vote for ``no 
representation'' allows employees to rid themselves of a collective-
bargaining representative. 75 FR 26078.
    Commenters discussed the various justifications for the rule change 
in the NPRM and provided additional policy reasons in support of and in 
opposition to the proposed change. Before discussing those specific 
issues, the Board notes, as it did in the 2010 Representation Rule, 
that under FCC v. Fox, 556 U.S. 502 (2009), agencies are free to adopt 
an interpretation of its governing statue that differs from a previous 
interpretation and that such a

[[Page 35983]]

change is subject to no heightened judicial scrutiny. ATA, 663 F.2d 
476, 484 (D.C. Cir. 2011). Nor did the Board adopt a ``compelling 
reasons'' standard in In re Chamber of Commerce. Id. In upholding the 
Board's 2010 Representation Rule, when the NMB finally made a change to 
the way it counted ballots that it had previously considered and 
rejected several times, the D.C. Circuit stated that ``the fact that 
the new rule reflects a change in policy matters not at all'' and that 
``under the APA, the question for us is whether the Board considered 
all the facts before it, whether it drew reasonable inferences from 
those facts and whether the final decision was rationally related to 
those facts and inferences.'' Id. As discussed in Section A, the Board 
believes it has the statutory authority to provide employees with the 
option to directly request a decertification election rather than 
making them seek decertification in the guise of certification with a 
straw man. As discussed below, the Board also believes that direct 
decertification better protects the right of free choice of 
representatives by eliminating a confusing and counterintuitive process 
that requires employees to ostensibly seek representation to vindicate 
their right to be unrepresented.
    Commenters opposed to the NPRM state there is no evidence to 
support the Board's statement that the straw man process is 
``unnecessarily complex and convoluted.'' The Board, however, received 
many comments regarding the confusion that is inherent in the straw man 
process. Many commenters supporting the NPRM, including Allegiant Air, 
CEI, NRLC, Gregg Formella, and the U.S. Chamber of Commerce (Chamber), 
noted that the Board's straw man procedure is inherently confusing 
because employees must authorize a representative to trigger an 
election to remove their representative. As the Chamber stated in its 
comment, ``[i]n order to achieve decertification, employees have to 
collect authorization cards in support of electing a representative 
they do not actually want and even though the vote is about declining 
further representation.'' Right to Work, which provides free legal 
services to individual employees, stated that its attorneys regularly 
receive calls from employees seeking information about their right to 
disassociate from unions and that a ``result of the inquiries is that 
RLA-covered employees are often left confused and disheartened when the 
straw man rules are explained to them.'' Right to Work described the 
NMB's current decertification procedure as ``daunting'' to employees 
and stated that ``many RLA-covered employees simply give up when the 
straw man obstacles are explained to them.'' Many comments in support 
of the NPRM noted the potential for confusion because both the straw 
man and the ``no representation'' option appear on the ballot. The CEI 
noted that under the current procedure, ``employees are faced with a 
ballot with the straw man and a no union option which causes confusion. 
Some employees who wish to remove union representation will reason they 
should vote for the straw man because that is the ballot option for 
which they signed an authorization card. However, other employees who 
similarly desire to reject union representation will vote for the no 
union option. This splits the vote for decertification.'' Rebecca Smith 
of Rock Creek House Consulting, LLC stated that she had assisted pilots 
in decertification efforts and ``no matter how well I explain it to 
those who ask, on voting day there is still confusion over the `straw 
man.' This confusion leads to people voting for the `straw man' because 
they believe it reflects their choice not to be represented.'' Ms. 
Smith added that, in her view, making the process more straightforward 
``also clarifies for those who want to be represented where to cast 
their vote since the current ballot gives them what appears to be 
several choices for representation.'' The Board takes notice that in 
both successful and unsuccessful straw man elections employees cast 
votes for both the straw man and ``no representation.'' Jeremy 
Dalrymple of the Heritage Foundation noted that not only is the straw 
man procedure ``counterintuitive because it requires employees that are 
seeking to divest themselves of representation first petition for a 
strawman to represent them, but, given the nationwide system of 
representation under the RLA, there are significant barriers to 
communicating the convoluted concept of the `strawman' to employees 
spread across multiple geographic locations.''
    The comments from individuals who had been a straw man supported 
the view that the current procedure is confusing. Steven Stoecker, who 
filed an application as the straw man in Allegiant Air, 43 NMB 84 
(2016), stated that he had to convince ``half of my work group . . . to 
sign an authorization card that stated that I wanted to represent them, 
even though I didn't want to. Trying to explain to the rest of the work 
group that in order to decertify and become unrepresented, they have to 
sign a card authorizing me to represent them was confusing to say the 
least.'' Following the Board's authorization of the election, Mr. 
Stoecker stated that ``I had a short window of time to campaign and 
remind my colleagues to not vote for me but rather to vote `no 
representation.''' Ronald Doig, another employee who served as the 
straw man in Allegiant Air, 42 NMB 124 (2015), commented,

[w]e had to start with an education process that explained to my 
fellow Dispatchers that in order to get the Teamsters out we had to 
sign an authorization card wanting me as the Straw Man to represent 
them. Then we further explained, that when the election comes 
around, do not vote for the Straw Man but vote for the ``No 
Representation Option.'' Although we were successful quite frankly 
some of the Dispatchers never got it. The process as it exists today 
is confusing and not straightforward. From my experience as a former 
Straw Man, employees should have a clear path that states we want an 
election to decertify our union.

    Firsthand accounts from straw men also revealed the hostility, 
threats, and retaliation directed at them by union supporters. The 
comments from Mr. Stoecker, Mr. Woelke, straw man in Flight Options, 
LLC/FlexJet, LLC, 45 NMB 95 (2018), and Mr. Doig described the burden 
borne by the straw man. According to Mr. Stoecker, ``[t]he straw man 
also has a target on his back since his name is on all the 
authorization cards and on every election ballot . . . Elimination of 
the straw man will be beneficial from the standpoint that no one 
individual will have to bear the brunt of union attacks during a 
decertification effort.'' A comment from Frank Woelke, who also filed 
an application as the straw man, described his own experience, 
including the exposure of personal information on the internet, online 
personal attacks, and vulgar post cards and suspicious packages sent to 
his home. Mr. Woelke stated that ``[n]obody in his right mind would 
want to stand up as a Strawman'' knowing the intimidation, slander, and 
harassment they will be exposed to because of the NMB's procedures. Mr. 
Doig stated that he was subject to retaliation from the union and its 
supporters and expressed the view that it ``is almost as if the process 
is set up to be a deterrent to decertification efforts by making a 
target out of the Straw Man. Again, a straight forward [sic] process 
will remove the Straw Man's name form the ballot and give employees the 
freedom to exercise their rights without that fear.''
    The TTD argues that the straw man will still exist and that nothing 
has been simplified by the NPRM. The Board disagrees. Under the current 
procedures,

[[Page 35984]]

an individual employee files an application supported by valid cards 
from 50 percent of the craft or class authorizing that individual to 
represent the employees for purposes of collective bargaining under the 
RLA. Following the Russell decision, the Board does not inquire into 
whether the individual actually intends to represent the craft or class 
or the individual is the straw man. The Board simply authorizes the 
election and conducts a tally. Sometimes the individual is certified. 
Sometimes the incumbent representative is decertified. Under the 
proposed change, employees who want to become unrepresented will 
express that desire for decertification in their showing of interest 
and the individual applicant's name will not appear on the 
authorization cards or the ballot. If, however, 50 percent of employees 
in a given craft or class want one of their co-workers to represent 
them instead of their incumbent representative and that individual 
files an application with a valid showing of interest indicating that 
50 percent of the craft or class want that individual to represent them 
in collective-bargaining under the RLA, the Board will still authorize 
an election and conduct a tally. The ballot will include the 
applicant's name, the incumbent union, the no representation option, 
and the write-in option. In that circumstance, the individual applicant 
will no longer be a straw man. Under the rule change, employees will 
now have the ability to directly express their desire to become 
unrepresented instead of hiding it behind a straw man. The intent to 
decertify will be clear through authorization cards stating that they 
no longer wish to be represented by their incumbent union and the 
individual who filed the application will not appear on the ballot.
    The IAM states the NPRM is a ``solution in search of a problem.'' 
Other commenters like the TTD, SWAPA, and IBT state that the straw man 
process is adequate as employees currently use it and succeed in 
decertifying their union. In her comment, Senator Patty Murray stated 
that there already is ``a well-established process for aviation and 
rail workers to remove their union representation or change union 
representation should they choose to do so.'' The comments received 
from individuals who have used the current procedure, however, 
demonstrate that it is confusing, counterintuitive, and often unduly 
burdensome for the employee who acts as straw man. The Board's own 
experience with calls and inquiries from employees seeking to become 
unrepresented bears this out. The Board believes the current straw man 
procedure requires employees who wish to become unrepresented to take 
an additional, unnecessary, and counterintuitive step to get an 
election to determine whether the majority of employees in their craft 
or class desire to become unrepresented. When employees who are 
currently unrepresented want representation, they file an application 
supported by a showing of interest for the organization they want to 
represent them. When employees who are currently represented want to 
change their representation, they file an application supported by a 
showing of interest for the new organization they want to represent 
them. When employees no longer wish to be represented, they file an 
application supported by a showing of interest for someone who they 
don't want to represent them but they must say they want as a 
representative to get an election to vote against the incumbent 
representative they no longer want. The Board's proposal will simply 
allow employees who no longer want representation to directly state 
that to the Board, in both their application and on their showing of 
interest and to get an election to resolve the representation dispute 
they actually have.
    The Board is not adopting this proposal to promote decertification. 
The Board has no stake in the outcome of a representation dispute. Its 
statutory role is to act as a neutral ``referee'' in representation 
matters. Switchmen v. NMB, 320 U.S. 297, 304 (1943). The Board ``simply 
investigates, defines the scope of the electorate, holds the election, 
and certifies the winner.'' ABNE, 380 U.S. 650, 667 (1965). The Board 
believes that the proposed change is necessary to fulfil its statutory 
mission to protect employees' right to free choice in representation, 
including the choice to be unrepresented. The choice in every 
representation dispute belongs to the employees of the craft or class 
involved, not to the Board. And employees who no longer want collective 
representation have the right to bring that dispute directly to the 
Board and have it resolved.
    Commenters opposed to the NPRM referenced and supplied statistics 
regarding the number of applications that resulted in no 
representation. The TTD states that employees freely and frequently 
alter their representatives and submitted a chart showing elections in 
which, after an application was filed by an individual or ``small 
unaffiliated organization,'' some incumbent unions were decertified, 
some incumbent unions remained certified, and some individual/small 
unaffiliated organizations were certified. Some incumbent unions chose 
to disclaim representation when faced with a potential challenge rather 
than go to an election.
    Based on its chart, the TTD states since 1998, a total of 43 
individuals or ``likely straw men'' filed applications and in 27 of 
those elections, the incumbent representative was ``effectively 
decertified'' since either no representation won or the individual was 
certified.\6\ The TTD also states that since 1998, 51 small 
unaffiliated organizations, which it terms ``potential straw men'' have 
filed applications and of those elections, 11 resulted in no 
representative being certified and 19 resulted in the small 
unaffiliated organization being certified. The TTD also concedes that 
some of those small unaffiliated organizations ``may have continued as 
a representative.'' The Board agrees that these statistics show that 
employees change representation or successfully use the straw man 
procedure to become unrepresented.\7\ However, these statistics provide 
no evidence regarding how many employees find the straw man process too 
confusing, or are unable to find someone willing to face hostility from 
union supporters and be the straw man or can convince enough of their 
fellow employees to sign cards authorizing an

[[Page 35985]]

individual to represent them when they really don't want representation 
in the first place.
---------------------------------------------------------------------------

    \6\ From 1998 to 2018, the Board held 695 representation 
elections.
    \7\ The TTD states that if the ``NPRM is adopted, the Board will 
have three avenues for employees to become unrepresented'' but only 
one way to get representation. The Board disagrees with this 
statement. These three avenues referred to appear to be the existing 
straw man procedure, the proposed direct decertification, and 
disclaiming representation. Once the NPRM is adopted, the Board 
believes that employees who wish to decertify will use the proposed 
direct procedure rather than the straw man. This will be apparent by 
authorizations indicating the employees no longer wish to be 
represented. As previously discussed, employees are free to seek to 
have an individual co-worker represent them under the Act. Finally, 
the Board has no control over when or under what circumstances a 
certified bargaining representative disclaims interest in the craft 
or class. That decision rests with the certified representative. As 
the TTD points out, some certified representatives do it when they 
realize they have lost majority support in the craft or class. In 
addition, in the public debate surrounding this rulemaking, some 
commenters have characterized one union seeking to take over an 
already organized work group (i.e. raiding) as decertification. In 
the Board's view this is incorrect. Unions have filed applications 
to represent crafts or classes that are already organized. Under the 
RLA, some large employee groups are represented by independent 
unions not covered by the AFL-CIO's anti-raiding provisions. The 
Board recognizes that employees can and do desire a change in 
representation. These elections may result in the incumbent 
retaining representation, the raiding union winning representation 
or, on occasion, the loss of representation entirely. Again, these 
elections outcomes are outside the Board's control and reflect the 
exercise of employee free choice.
---------------------------------------------------------------------------

    In representation disputes, the Board's interest is that the 
dispute is resolved and the result reflects the free and uncoerced 
choice of a majority of the craft or class. Whether employees choose 
representation or reject representation is up to them, not the Board. 
What does matter to the Board is whether the election process allows 
them to freely exercise their right to choose; and the Board believes 
the current proposal to eliminate the straw man and allow direct 
decertification will better effectuate employees' right to choose.
    When representation is desired by the employee group, the existence 
of a direct decertification process clearly broadcasts that the chosen 
representative does indeed hold the power to negotiate and advocate for 
the work group. In comments supporting the proposal, the NRLC pointed 
out that ``if anything, the proposed rule strengthens an incumbent 
union by confirming that the union continues to enjoy the support of a 
majority of employees.''

C. Effect of the Proposed Change on Stability

    The Board agrees about the value of stability in the air and rail 
industry, as defined as a lack of disruptions caused by strikes and 
work stoppages. The Board's ``almost interminable'' mediation processes 
is given much of the credit for preventing disruptions to interstate 
commerce. Detroit & Toledo Shore Line R.R. Co. v. United Transp. Union, 
396 U.S. 142, 149 (1969). The Board also notes that the statutory 
showing of interest requirement contributes to stability, because the 
statute requires a valid showing of interest from 50 percent of the 
craft or class to trigger a representation election and there is 
system-wide representation under the RLA. As the NLRC noted in its 
comment, ``[d]ecertification elections on the large Class I carriers 
have been rare, to say the least. Any suggestion that the contemplated 
changes to the current rules will generate a massive upsurge in 
decertification campaigns is, at best, speculative.'' The Board will 
not predict the choices employees will make in the future, but it must 
act to facilitate the statutory mandate of free choice of 
representation, rather than forced unionization for the sake of 
stability.
    The Board's representation process is the predicate to establishing 
a collective-bargaining relationship, but the statute mandates that the 
choice to become represented or unrepresented is the employees' 
decision and theirs alone. The Russell court rejected the Board's 
contention the employee free choice in representation election was 
subordinate to the RLA's purpose of avoiding work stoppages through 
collective representation and bargaining. While the court agreed that 
the RLA encourages collective bargaining as the mode by which disputes 
are to be settled and work stoppages avoided, the Act does not compel 
employees to choose collective representation. Russell, 714 F.2d 1332 
at 1344. Employees under the RLA have complete independence to organize 
or not to organize and this necessarily includes the right to reject 
collective representation. Id.

D. Effect of the Proposed Change on Interference by Carriers or Outside 
Interest Groups

    Commenters opposed state that the NPRM creates an increased risk of 
carrier interference in representation disputes. The AFA stated that 
the NPRM will embolden an employer to inject itself into the 
decertification process. IAM states that the proposed rule ``would no 
doubt embolden outside organizations funded by employer groups or 
interests in ways that are opaque to both the Board and employees, to 
seek to decertify elected officials.'' The TTD states that, without a 
straw man, there will be no identified individual to be held 
accountable throughout the process, and carriers will be ``emboldened 
to interfere in the election process by hiding behind the relative 
anonymity of the Board's new proposed decertification applications.'' 
The Board's proposed rule change does not eliminate accountability. As 
previously discussed, the Board cannot and is not changing who is 
allowed by statute to invoke its services to resolve a representation 
dispute. Further, an employee will still be required to file an 
application to seek decertification under the NPRM, as is clearly 
stated in the new Section 1206.5. The employee filing the application 
will still be the responsible party during the representation process 
as they are now. The difference is that a straw man will no longer be 
required. Instead, the ballot will be limited to the incumbent 
representative, the no representation option, and the write-in option.
    The RLA protects the right of employees to select their 
representatives without carrier influence or interference. The Board 
has long held that actions or activity by a carrier that fosters, 
assists, or dominates an applicant may result in dismissal of a 
representation application because the authorizations are tainted, N. 
Air Cargo, 29 NMB 1 (2001), or disqualify the applicant as an employee 
representative, Mackey Int'l Airlines, 5 NMB 220 (1975).\8\ There is 
nothing in the NPRM that suggests the Board would or intends to 
abrogate its duty to protect the right of employee to be free from 
carrier interference in their choice of whether to get or reject 
representation, and indeed we do not do so in this final rule.
---------------------------------------------------------------------------

    \8\ See also Great Lakes Airlines, 35 NMB 213 (2008); Virgin 
Atlantic Airways, 24 NMB 575 (1997).
---------------------------------------------------------------------------

E. Time Limit on Decertification Applications

    Unlike the NLRA,\9\ the RLA does not place any time limits on when 
applications to investigate representation disputes can be filed. The 
Board, however, has adopted time limitations on the filing of 
applications for the same craft or class on the same carrier. Under 
Section 1206.4(a), the Board will not accept an application filed 
within two years of the certification of a collective bargaining 
representative. Under Section 1206.4(b), the Board will not accept an 
application filed with one year of the dismissal of an application. As 
discussed below, the Board has modified these time limits several times 
in order to strike the appropriate balance between employees' 
organizational rights, labor stability, and the disruptive effect in 
the workplace from frequent elections.
---------------------------------------------------------------------------

    \9\ Section 9(c)(3) of the NLRA precludes the holding of an 
election in any bargaining unit in which a valid election was held 
during the preceding 12-month period. 29 U.S.C. 159(c)(3).
---------------------------------------------------------------------------

    Prior to 1947, following a certification, it was ``the policy of 
the Board not to conduct repeat elections until the organization 
certified has had a reasonable period to function as the duly 
authorized representative of employees.'' 13 NMB Ann. Rep. 4 (1947). 
This reasonable period was one year. In the NMB's 1947 Rulemaking, this 
period was extended to two years. 12 FR 3083 (May 10, 1947). The Board 
stated that the ``policy of the Board in this connection derives from 
the law which imposes upon both carriers and employees the duty to 
exert every reasonable effort to make and maintain agreements. 
Obviously, this basic purpose of the law cannot be realized if the 
representation issue is raised too frequently.'' 13 NMB Ann. Rep. 4. 
The Board observed that many representation disputes arose out of the 
competition between labor organizations. Id. In 1954, the Board revised 
its rules to impose a one year

[[Page 35986]]

limitation on the filing of applications for the same craft or class on 
the same carrier where (1) the election resulted in no representative 
being certified; (2) the application was dismissed by the Board on the 
grounds no representation dispute existed; \10\ or (3) the applicant 
withdrew the application after it was formally docketed. 19 FR 2121 
(Apr. 13, 1954). In making this change, the Board stated that 
``representation campaigns and the organizing campaigns which 
necessarily precede them cause unsettled labor conditions and, in many 
cases, disturb employees substantially in the discharge of their 
duties. It is contemplated that the [rule change] will prevent hasty 
refiling of applications which have previously been dismissed by the 
Board.'' 20 NMB Ann. Rep. 10 (1954). The 1954 rule contained a proviso 
that the three conditions would ``not apply to employees of a craft or 
class who are not represented for purposes of collective bargaining.'' 
19 FR 2121. The effect of the proviso was to exempt applications 
pertaining to unrepresented employees from the filing time limitations. 
45 NMB Ann. Rep. 10 (1979). Thus, in cases where unrepresented 
employees chose to remain unrepresented, there was no time limitation 
whatsoever and a new election could be sought the very next day. In 
1979, the Board amended Section 1206.4 to make the time limits 
applicable regardless of whether or not the employees covered by the 
application are represented for purposes of collective bargaining. Id. 
The Board did not change the existing time limits of a two year bar 
post-certification and a one year bar following dismissal on the three 
enumerated grounds. Comments opposed to applying the time limits to all 
NMB representation applications regardless of whether the employees 
involved were represented or unrepresented asserted that the bar rules 
could be used to frustrate employee organization, for example, if an 
applicant dominated by a carrier filed to frustrate a legitimate 
organization. In response, the Board stated that the language in 
Section 1206.4 providing an exception to the time limits ``in unusual 
or extraordinary circumstances,'' would allow the Board to remedy a 
company dominated union situation as well as ``an election which was 
improperly affected by a carrier or other interference at some stage of 
the proceeding.'' 44 FR 10602 (Feb. 22, 1979). Thus, the Board has 
expanded the time limitations placed on applications several times to 
balance the statutory right of freedom of choice in organizing with the 
need for labor-management stability and to avoid undue disruption to 
the workplace from continual representation elections.
---------------------------------------------------------------------------

    \10\ Generally, when the applicant had failed to support the 
application with a sufficient valid showing of interest.
---------------------------------------------------------------------------

    Commenters opposed to the two year limitation following 
decertification, including the IBT, the IAM, the TTD, the AFA, the 
Association of Professional Flight Attendants, the Allied Pilots 
Association, and some Members of Congress, contend that the proposed 
change is an unwarranted, unjustified, and impermissible restriction on 
employees' right under the RLA to organize and bargain collectively 
through representatives of their own choosing. The Board disagrees. As 
the foregoing discussion establishes, the NMB has both placed time 
limitations on the filing of applications and expanded those 
limitations based on considerations of labor stability and disruption 
to the workplace. All of these limitations--including the current two 
year limitation post-certification--represent a degree of restriction 
on employees' exercise of their right to choose or reject collective 
bargaining representatives. And all of these limitations reflect an 
exercise of the Board's discretion to balance competing interests. The 
proposed change reflects the Board's belief that both certification and 
decertification are significant undertakings by employees with a 
substantial impact on the workplace and employees' relationship with 
their employer. This belief is supported by the comments of Ronald 
Doig, an employee who successfully led a decertification effort using 
the current straw man procedure. According to Mr. Doig,

[w]hen we were successful in the election and voted the Teamsters 
out [the NMB's time limits on applications] only allowed one year 
before there could be another election. If the Teamsters had 
prevailed and won the election, they would have been granted two 
years before another election could take place. The difference [in 
time limits] is unfair. The Teamsters never let up, continuing their 
campaign and we never really got the chance to fully enjoy the 
benefits of a direct relationship with our company. Our workplace 
remained in a state of distraction the entire year after the 
election which led to another election that the Teamsters won. To 
this date we are still in a state of distraction and I believe had 
we had the same two years the unions get we would have achieved a 
stability through a direct relationship.

Employees who have exercised their right to reject representation 
deserve a period of repose to transition to that direct relationship 
and experience their workplace without a collective representative. 
This period of time allows employees to judge the advantages and 
disadvantages of their decision without the turmoil of an immediate 
organizing campaign.
    Commenters opposed to the proposed change to have the two year 
limitation in Section 1206.4(a) apply to decertification as well as 
certification assert that the change is unwarranted and the Board draws 
an improper parallel between certification and decertification. The 
commenters opposed state that the two year limitation post-
certification is justified by the need for a newly certified 
representative to be afforded an insulated period to bargain for an 
initial contract and if necessary participate in mediation before its 
representative status is challenged. \11\ The Board has not sought to 
alter this two year period post-certification and views it as an 
appropriate balance between the goal of labor stability and the 
statutory obligation to facilitate free choice in representation or 
rejection of representation. The proposed rule change does not affect 
this limitation. Rather the proposed change recognizes that the 
transition from represented to unrepresented has a significant impact 
on the employees and their workplace. The current two year limitation 
gives the union a chance to demonstrate the value of its services to 
the employees who elected it. After decertification wherein the 
majority of employees chose to reject representation, it is only fair 
to give employees a chance to experience the effects of their choice on 
their workplace.
---------------------------------------------------------------------------

    \11\ The Board does note that the two year limitation applies 
not only to newly certified representatives negotiating first 
contracts, but to all certifications, even to an incumbent union 
surviving a raid by another union, Pinnacle Airlines, 35 NMB 1 
(2007), or a decertification attempt, Youngstown & N. R.R. Co., 7 
NMB 132 (1979). The two year limitation also applies to 
certifications without an election as a result of a merger of 
carriers, United Air Lines/Cont'l Airlines, 39 NMB 167 (2011); Tex. 
Mexican Ry. Co., 27 NMB 302 (2000).
---------------------------------------------------------------------------

    If a union has become decertified, it is because a majority of the 
employees in the craft or class have decided that that they no longer 
want that representative. The RLA encourages collective bargaining 
between employee representative and the employer, but it gives 
employees the absolute right to choose to reject representation. The 
Board is simply giving employees who have rejected representation an 
additional year to experience their workplace and their direct 
relationship with their employer before another representation dispute 
can be raised in their work group. The two year

[[Page 35987]]

limitation is on the time to file an application. Since the 
authorization cards can be dated by employees up to one year from the 
date of the filing of the application, employees, if they so choose, 
can begin organizing a year after decertification. Commenters in 
support of the rule noted that without this rule change, organizing can 
begin the day after an election which results in a decertification, and 
employees are afforded no period of repose at all.
    A former practitioner and advocate before the NMB opposed to the 
proposed change states in his comment that a two year limitation 
``neither applies to the NMB `indirect' decertification process nor to 
any decertification provisions in other federal statutes or 
regulations.'' The Board does not find these arguments persuasive. As 
previously discussed the RLA makes no provision regarding limitations 
on applications. These rules have been, and remain, an exercise of the 
Board's discretion. The Board notes that it is equally true that a two 
year limitation following certification is not provided in other 
federal statues or regulations. Under the NLRA, the period of repose is 
at least one year for certification or decertification. Under the FLRA, 
the election bar is also one year for certification or decertification. 
NMB also applies a two year limitation regardless of whether the 
certification is a newly certified representative or the certification 
of an incumbent union following a raid or merger. Further, under the 
current indirect decertification, if a straw man is certified, the 
Board applies the two year limitation. If that straw man does not 
formally disclaim interest, an application for that same craft or class 
of employees at the same carrier would not be accepted by the Board for 
two years following the certification.
    Under the proposed rule change, the additional time limit on 
applications will be limited to applications seeking to decertify an 
incumbent representative. It would be clear upon filing of the 
application that the intent of employees is to seek decertification. As 
discussed above, such an application filed by an employee or group of 
employees will be supported by a showing of interest stating that 
employees no longer wish to be represented by their incumbent union. A 
decertification election will be held where only the incumbent union, 
the no representation option, and the write-in would appear on the 
ballot. If a majority of employees vote for representation or if a 
majority of employees vote for no representation, there will be a two 
year limitation on applications seeking to represent the same craft or 
class at the same carrier. If the incumbency of an organization is 
challenged in a raid--by another organization or individual seeking to 
represent that craft or class--and, in the election a majority of 
employees fail to vote for representation, the one year limitation will 
continue to apply as it will if a currently unrepresented employee 
group does not vote for representation.

IV. Conclusion

    Based on the rationale in the proposed rules and this rulemaking 
document, the Board hereby adopts the provision of the proposal as a 
final rule with the clarification in the text of Section 1203.2 in the 
final rule to require that an employee may file a decertification 
application. This rule will apply to applications filed on or after the 
effective date.

Dissenting Statement of Chairman Puchala

    Chairman Puchala dissented from the action of the Board majority in 
adopting this rule. Her reasons for dissenting are set forth below.
    Congress enacted the Railway Labor Act (RLA or Act), 45 U.S.C. 151, 
et seq., to create a comprehensive statutory scheme to prevent 
disruptions of interstate commerce through the prompt resolution of 
labor disputes between rail and air carriers and their employees. In 
Virginia Railway Co. v. System Federation No. 40, the Supreme Court 
articulated the purposes and objectives of the Act in terms of the duty 
to bargain, noting that the RLA's ``major objective is the avoidance of 
industrial strife, by conference between the authorized representatives 
of employer and employee,'' and its ``provisions are aimed at the 
settlement of industrial disputes by the promotion of collective 
bargaining between employers and the authorized representatives of 
their employees.'' 300 U.S. 515, 547-548 (1937). Thus, the RLA is a 
collective bargaining statute and its underlying philosophy is almost 
total reliance on collective bargaining for the settlement of labor-
management disputes.
    I dissent from the rule published today because the changes my 
colleagues have adopted are unnecessary and contrary to the purposes of 
the Act. In my view, these changes will impede rather than support the 
mission of the Agency and the objectives of the Act.
    The National Mediation Board (NMB or Board) administers the RLA, 
the oldest extant labor relations statute in the United States and it 
has been remarkably successful in fulfilling its statutory mission of 
insuring the right of railroad and airline employees to organize into 
free and independent labor organizations, of assisting labor 
representatives and carrier management in the prompt settlement of 
disputes over rates of pay and terms of work, of resolving grievances 
over the terms of existing contracts, and of accomplishing these aims 
without the interruption of transportation services essential to 
interstate commerce.
    As an initial matter, I note and my colleagues concede, the RLA 
does not have an express statutory provision for decertification like 
the National Labor Relations Act (NLRA). From 1935 to 1947, the NLRA 
also lacked a statutory procedure for decertification. Congress, 
through the Taft-Hartley Act, provided a statutory mechanism for 
employees to seek decertification of their current bargaining 
representative. 29 U.S.C. 159(c)(1)(A). Congress has taken no similar 
action with regard to the RLA. Not in the 1950 amendments, when 
Congress referenced the Taft-Hartley Act in adding Section 2, Eleventh 
to permit the negotiation of union shop agreements. H.R. Rep. No. 81-
2111, at 4 (1950). Not in 2012, when Congress provided for a 50% 
showing of interest in representation applications and mandated 
specific provisions for run-off elections. FAA Modernization and Reform 
Act of 2012, Public Law 112-95 (2012 FAA Modernization Act). There have 
been no changed circumstances since 2012 that would necessitate or 
justify Board or Congressional action with respect to a decertification 
rule. In my view, the addition of a direct decertification procedure to 
the NMB's representation procedures is a step to be taken by Congress 
through legislation and not by the Board through rulemaking.
    While the RLA lacks a statutory decertification procedure, the 
existing representation procedures allow employees to get 
representation, change representation, and reject representation. As 
many of the commenters opposed to the rule observed, the Board already 
provides a method for employees to decertify their incumbent union. In 
the 2010 Representation Rulemaking, the NMB declined to reexamine its 
decertification procedures and noted that its ``existing election 
procedures allow employees to rid themselves of a representative.'' 75 
FR 26,078. The 2010 Rulemaking allowed employees to affirmatively cast 
a ballot for ``no union'' and eliminated the most confusing step in the 
``straw man'' process. 75 FR 26079. The election statistics submitted 
with the comments of the Transportation Trades

[[Page 35988]]

Department of the AFL-CIO (TTD) demonstrate that employees can and do 
utilize the existing decertification process to become unrepresented. 
As the TTD further observed, while Board clearly receives more 
applications seeking the certification of a representative than the 
decertification, this represents a longstanding desire of employees in 
the air and rail industry to have union representation in the workplace 
rather than a problem with the NMB's election process.
    In adopting a two year bar to representation applications following 
decertification, the majority ignores well-settled Board precedent 
recognizing the complexities unions face in establishing collective 
bargaining relationships and concluding labor agreements. The Board has 
long recognized that labor stability is enhanced by providing a 
reasonable period of time to establish a collective bargaining 
relationship. Jet Am., 11 NMB 173 (1984). Instead, my colleagues rely 
on a false equivalence between certification of a collective bargaining 
representative and decertification resulting in the return to at will 
employment.
    My own experience in various labor-management capacities has 
allowed me to witness firsthand the monumental tasks unions face in 
establishing and maintaining quality representation for their members. 
This task is compounded by the fact that, under the RLA, unions 
represent nation-wide crafts or classes, namely all the employees 
performing the same work for the same employer regardless of their 
geographic location. This system-wide representation automatically 
expands the number of regional issues the union must be prepared to 
address in collective bargaining. Once certified, the union must 
continue to generate system-wide employee interest in establishing a 
template of representation that is reflective of member priorities and 
gives voice to member concerns. The union's constitution and bylaws, 
which reflect the rights of individual members, are reviewed and 
explained. Volunteer employees are appointed and elected to leadership 
positions on numerous committees including bargaining committees and 
health and safety committees.
    Once certified, the union assumes the responsibility to initiate 
collective bargaining--often counted in years under the RLA--by 
training volunteers to work with union staff to set the bargaining 
agenda through a series of member surveys, meetings, and round table 
discussions. Even before bargaining commences, an elaborate 
communications system is launched to insure internal communications 
keep members at all work locations informed of the status of collective 
bargaining. Once a tentative agreement is reached, it must be reviewed 
and approved by the members. The ratified contract is enforced by a 
grievance procedure with an arbitration clause designed to protect 
individual and collective rights. In the rail and airline industries, a 
safety culture is promoted by the union through joint labor and 
management initiatives as well as separate union sponsored health and 
safety programs. Union activities are designed to promote the workers' 
agenda by creating opportunities for management to hear members' voices 
on workplace issues. This dialogue at labor-management meetings creates 
opportunities for both labor and management to improve the relationship 
and create ideas that further the goals of both parties. These 
obligations of bargaining and resolving grievances are all part of the 
statutory framework that Congress created. Section 2, First of the RLA 
states,

    It shall be the duty of all carriers, their officers, agents, 
and employees to exert every reasonable effort to make and maintain 
agreements concerning rates of pay, rules, and working conditions, 
and to settle all disputes, whether arising out of the application 
of such agreements or otherwise, in order to avoid any interruption 
to commerce or to the operation of any carrier growing out of any 
dispute between the carrier and the employees thereof.

45 U.S.C. 152, First. The Act's emphasis is on the full acceptance of 
that bilateral relationship and the free exercise of both parties' 
rights in determining rates of pay, rules, and working conditions with 
the duty imposed to seek to avoid interruptions to commerce.
    What happens when an incumbent union is decertified? The carrier 
develops and implements the rules of the workplace. It may voluntarily 
seek employees' views and participation on workplace issues, but is not 
required to do so. The union and its former members lack standing to 
bargain and maintain contracts and initiate and progress grievances. 
All rights reflected in the collective bargaining contracts are 
extinguished unless required by law or regulation.
    Following decertification, obligations are removed rather than 
assumed. There is no longer an obligation to bargain. There is no 
longer an obligation to administer or enforce a collective bargaining 
agreement. There is no role for the NMB in mediation. And in my view, 
there is no statutory basis for imposing an administrative restriction 
of two years on employees' freedom to choose a representative following 
a decertification election that results in no representative. A one 
year election bar is sufficient for employees to witness the loss of 
their collective bargaining rights and the loss of stability that 
accompanies that forfeiture.
    I believe it is punitive to deny access to RLA election procedures 
for two years given the increasing number of furloughs in the freight 
rail industry as carriers move to a new business model and as airline 
employees contend with the residual effects of widespread bankruptcies, 
mergers, and reorganizations. The negative consequences of 
decertification and stripping employees' collective bargaining rights 
goes beyond the potential loss of wage growth \12\ to a lack of ability 
to protect negotiated provisions for health and retirement benefits, 
seniority rights that determine work hours and location, and furlough 
protections that give employees rights to return to their former 
positions. The rail and airline industries have a union density rate of 
60-80% that I believe is largely due to a long history of negotiating 
protections for those actively employed as well as retirees.
---------------------------------------------------------------------------

    \12\ According to the Bureau of Labor Statistics non-union 
workers only make 82% of what union workers are paid. U.S. Dep't of 
Labor, Bureau of Labor Statistics, Economic News Release, USDL-19-
0079 (Jan. 18, 2019), https://www.bls.gov/news.release/union2.htm.
---------------------------------------------------------------------------

    The two year election bar which dictates a two year break in 
collective bargaining is also bad public policy. The RLA is designed to 
avoid interruption of interstate commerce. The primary tool the NMB 
uses to protect the public from interruptions of service is mandatory 
mediation of collective bargaining agreements between unions and air 
and rail carriers. This is why the RLA is predisposed to promote 
collective bargaining. This governmental exercise of control over the 
labor-management relationship requires disputing parties to enter NMB 
mandatory mediation for an ``almost interminable'' amount of time 
before either party can exercise self-help. Detroit & Toledo Shore Line 
R.R. Co. v. United Transp. Union, 396 U.S. 142, 149 (1969). A series of 
additional steps, a 30 day cooling-off period, a potential Presidential 
Emergency Board that recommends settlement terms followed by additional 
cooling off periods, and finally intervention by Congress under the 
Commerce Clause of the Constitution are all designed to promote the 
public's interest to avoid interruption of interstate commerce.

[[Page 35989]]

    Consequently, I disagree with the Board majority's decision to make 
this change.
    Chairman Linda Puchala.

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 amends 29 CFR parts 1203 and 1206 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 employee seeking certification, or 
the name of the employee 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 by 
the invoking employee. These disputes are given docket numbers in the 
series ``R''.

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

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

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


0
4. 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
5. 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
6. 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
* * * * *


Sec.  Sec.  1206.5 through 1206.7  [Redesignated as Sec. Sec.  1206.6 
through 1206.8]

0
7. 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.

    Dated: July 23, 2019.
Mary L. Johnson,
General Counsel.
[FR Doc. 2019-15926 Filed 7-25-19; 8:45 am]
BILLING CODE 7550-01-P