In tomorrow’s edition of the Federal Register, the National Mediation Board (NMB) is set to publish a final rule (pdf) amending its representation election procedure that has been in place for 75 years, making it easier for employees in the air and rail industries to unionize. Under the existing approach, a majority of employees eligible to vote in representation elections determines the outcome of the election. Therefore, employees who chose not to participate are counted as “no union” votes. Effective as of June 10, 2010, the NMB’s final rule upends this decades-old policy by basing the voting outcome on the majority of those who actually vote, as is the practice in non-NMB-governed industries.

In response to the NMB’s notice of proposed rulemaking on this proposed change published six months ago, the NMB received 24,962 comments. While the Board acknowledged that many commentators strongly criticized the radical change, it nevertheless adopted the proposed rule as final, claiming: “[t]his proposed change will allow the Board to more accurately ascertain employee desires regarding representation.”

In a strongly-worded dissent, NMB Chair Elizabeth Dougherty stated:

the rule change my colleagues are implementing is an unprecedented departure for the NMB and represents the most dramatic policy shift in the history of the agency. Against this backdrop, the Board should have proceeded with the utmost caution and relied only on the most settled and profound need for making such a change. Instead, the Majority has engaged in a rulemaking process that is procedurally and substantively flawed, harmful to the agency, and lacks sufficient justification.

Specifically, Dougherty opposed the rule for the following reasons:

(1) the timing and process surrounding this rule change harm the agency and suggest the issue has been prejudged; (2) the Majority has not articulated a rational basis for its action; (3) the Majority’s failure to amend its decertification and run-off procedures in light of its voting rule change reveals a bias in favor of representation and is fundamentally unfair; and (4) the Majority’s inclusion of a write-in option on the yes/no ballot was not contemplated by the Notice of Proposed Rulemaking (NPRM) and violates the notice-and-comment requirements of the Administrative Procedure Act (APA).

Despite the extensive criticism of this change, the final rule will be implemented 30 days after publication in the Federal Register. This rule will amend 29 CFR Part 1202 to read as follows:

§ 1202.4 Secret ballot.

In conducting such investigation, the Board is authorized to take a secret ballot of the employees involved, or to utilize any other appropriate method of ascertaining the names of their duly designated and authorized representatives in such manner as shall insure the choice of representatives by the employees without interference, influence, or coercion exercised by the carrier. Except in unusual or extraordinary circumstances, in a secret ballot the Board shall determine the choice of representative based on the majority of valid ballots cast.

In addition, part 1206 – Handling Representation Disputes Under The Railway Labor Act – will be amended by removing the phrase “less than a majority of eligible voters participated in the election” in section 1206.4(b)(1) and replacing it with: “less than a majority of valid ballots cast were for representation.” 

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