Airline Industry Alert: NMB Announces Proposed Rule To Simplify The Decertification Process

Author:Mr Jeffery D. Wall, Jacquelyn L. Thompson, Jessica Lynn Asbridge and Jaime B. Wamble
Profession:Ford & Harrison LLP

Executive Summary: On January 31, 2019, the National Mediation Board (NMB) published a proposed rule and request for comments to amend its regulations to provide for decertification of labor unions. The NMB's stated goal is to provide a "more straight-forward process" for decertification that puts employee efforts to decertify incumbent unions on "equal footing" with the process for union organizing. The proposed rule is available here.

Background: The NMB administers the Railway Labor Act (RLA), for purposes of investigating "disputes" over what union - if any - employees wish to select to represent them. Unions have traditionally been certified by the NMB to represent various crafts and classes of employees performing the same general job functions on a system-wide basis. Although the RLA has no statutory provisions for decertification of a representative, the Supreme Court has held that, under the RLA, employees of a craft or class "have the right to determine who shall be the representative of the group or, indeed, whether they shall have any representation at all." Bhd. of Railway and Steamship Clerks v. Assoc. for the Benefit of Non-Contract Employees, 380 U.S. 650, 670 (1965). Although unionized employees are technically able to oust incumbent unions under current NMB rules, the process for doing so is confusing and unnecessarily complex. Under current policy, employees who desire to become unrepresented must proceed using a "straw man." The straw man procedure requires a craft or class of employees who wish to decertify to first identify an individual (or organization) who is willing to put their name forward as someone who actually purports to want to represent the craft or class - with the understanding (it is hoped) that this person does not, in actuality, intend to serve as a representative. At least 50 percent of the workforce must then sign an authorization card, authorizing the individual to apply to the NMB to hold a representation election. Under the current rules, in the ensuing election, the ballot will provide employees with four options: (1) the incumbent representative; (2) the straw man applicant; (3) an option to write in the name of another organization or individual; and (4) "no representative." To achieve decertification, a majority of the employees in the craft or class must vote for no representation, or a majority must vote for the straw man applicant, who then disclaims interest in representing the craft or...

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