On Friday, a federal court judge issued an order (pdf) that will effectively permit the National Mediation Board’s (NMB) final rule (pdf) changing its 75-year-old representation election policy to proceed as planned. On May 17, the Air Transport Association of America (ATA) filed a lawsuit in federal court seeking to prevent the NMB from implementing this change to the election process that will make it easier for unions to organize airline and railroad employees. Under the long-established approach, a majority of employees eligible to vote in representation elections determined the outcome of the election. As a result, employees who chose not to participate are effectively viewed as “no union” votes. The NMB’s new rule changes this policy by basing the voting outcome on the majority of those who actually vote, as is closer to the practice in non NMB-governed industries.

The ATA’s lawsuit – which was later joined by the U.S. Chamber of Commerce (COC) – asserts that the NMB’s conduct was “arbitrary, capricious [or] an abuse of discretion” in that the NMB, among other actions, departed from its long-standing rule without legitimate justification, predetermined its course without regard to concerns raised by the industry, and selectively borrowed only pro-union provisions from the labor statute that applies to non-rail and non-airline employees. The ATA and COC also argue that NMB Chair Elizabeth Dougherty – who considered the rule to be “the most dramatic policy shift in the history of the agency” – was excluded from drafting and issuing the rule.

The June 25 order granted the NMB’s motion for summary judgment and denied the ATA’s motion to preliminarily block the NMB from implementing its rule at the end of June. Due to the ongoing litigation, the NMB last month had agreed to delay the effective date of its new rule from June 10 to June 30.

The court issued a full opinion (pdf) explaining its decision on Monday.

Photo credit: dra_schwartz