On May 11, 2010, the National Mediation Board (NMB) published a final regulation making it easier for unions to organize employers in the airline and rail industries. The regulation was adopted on a 2-1 party line vote with a sharp dissent from the Republican NMB member.

Under the new regulation, effective June 10, 2010, the NMB will certify a union if a simple majority of workers who cast ballots favor union representation. Under the prior practice, which had been unchanged for 75 years, the NMB required that a majority of eligible voters in a “craft or class” (bargaining unit) vote in favor of representation in order for a union to be certified, meaning that any worker who did not cast a ballot was effectively counted as a “no” vote.

The new regulation is a significant change to the NMB’s interpretation of the Railway Labor Act (RLA), which governs labor relations in the airline and railroad industries. The NMB’s new rule is similar to the rule currently applicable to all other private employers, which are governed by the National Labor Relations Act (NLRA). Significantly, however, the NMB left unchanged its current decertification and run-off procedures, which differ substantially from those under the NLRA, and result in the decertification process being more onerous than the new certification process.

The NMB justified its departure from the prior long-standing election process on the ground that it was “adopted in an earlier era, under circumstances that are different from those prevailing in the rail and air industries today.” The NMB had long recognized that the prior election procedures advanced the RLA’s objectives of maintaining labor stability in these industries and minimizing the disruption to interstate commerce from labor-management disputes, thereby preserving the essential role played by those industries in the economy.

Changing the NMB rule was a priority of the AFL-CIO, which requested in September 2009 that the NMB modify the RLA election procedures. On November 3, 2009, the NMB published a Notice of Proposed Rulemaking and opened a sixty-day public comment period. The NMB received almost 25,000 comments from employees, air and rail carriers, trade associations, labor unions, and others.

Roughly two-thirds of the 500,000 airline and railroad employees in the United States are already represented by unions, a significantly higher percentage than the overall union membership rate of just seven percent among private sector employees. As are result of this new regulation, employers in the rail and air industries are likely to see increased unionization efforts. In fact, unions are currently attempting to organize flight attendants and ground employees at Delta Air Lines and are expected to target smaller carriers as well. The Airline Transport Association and several airlines are expected to challenge the procedural and substantive legality of the NMB’s new regulation.