On Tuesday, the National Mediation Board (NMB) held a public hearing to discuss the agency’s proposed rule that would implement the changes to existing representation dispute and election procedures in the railroad and airline industries made by the Federal Aviation Administration Modernization and Reform Act of 2012 (FAA Act). Issued on May 15, 2012, the proposed rule would amend NMB regulations regarding run-off elections, showing of interest thresholds for representation elections, and the NMB’s rulemaking proceedings to reflect the changes the FAA Act made to the Railway Labor Act (RLA).

The genesis of the language included in the FAA Act was the controversial NMB rule (pdf) that changed the agency’s 75-year-old representation election policy. Under this rule, the outcome of representation elections is based on the majority of those who actually vote, rather than a majority of the bargaining unit, effectively making it easier for employees in the rail and air industries to unionize. A House-passed version of the FAA legislation would have rescinded the NMB’s rule altogether. The final FAA Act, however, did not include rescission language, but rather amended the RLA by: (a) specifying that the NMB must provide an opportunity for public hearing regarding any significant rules; (b) requiring that in any runoff election for which there are three or more options (including the option of “no union”) on the ballot and none receives a majority of the valid votes cast, a second election would be held between the two options receiving the most votes; (c) raising the showing of interest threshold for elections to not less than 50% (up from 35%) of the employees in the craft or class; and (d) imposing certain review and auditing requirements on the NMB’s programs and expenditures.

The amended language to the “showing of interest” provision provides that a showing of interest of not less than 50% is required to support an “application requesting that an organization or individual be certified as the representative of any craft or class of employees.” Given that the FAA Act changed the showing of interest threshold to 50%, the NMB solicited input “regarding the effect of the amendments on the Board’s policies and practices with respect to representation disputes in mergers.” Under the NMB’s current merger policy, as stated in its representation manual, “[i]ncumbent organizations or individuals on the affected carrier(s) must submit evidence of representation or a showing of interest from at least thirty-five (35) percent of the employees in the craft or class.”

The roster of speakers at the public hearing consisted of six representatives of different labor unions. The uniform focus of the testimony was the question of whether the new showing of interest requirements should apply to mergers. The union speakers were in general agreement that the new 50% threshold should not apply to mergers, where at least one of the merging entities already has a certified representative. Instead, a number of the speakers asked the NMB to codify the existing NMB merger procedures in the final rulemaking.

Comments on the proposed rule are due by August 6, 2012.