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.

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 class.

The NMB’s Proposed Rule Change: The NMB asserts the straw man requirement has no statutory basis, and as such, the NMB seeks to eliminate this unnecessary hurdle in the decertification process. The NMB proposes a process by which employees who wish to decertify an incumbent union would submit authorization cards indicating an intent to no longer be represented by the current union. The “showing of interest” requirement for decertification applications would be the same as that for applications seeking union representation, which is set at 50 percent of the employees eligible to vote in the craft or class (per amendments to the RLA passed by Congress in 2012). If the showing of interest is determined to be valid and sufficient, the NMB would authorize an election with the following ballot options: (1) the incumbent; (2) no representative; and (3) a write-in option. The NMB will thereafter require a majority vote for decertification in order to effectively decertify the craft or class. Additionally, the NMB proposes extending the two-year bar on accepting applications seeking the NMB to investigate a representation dispute to decertifications as well as certifications. This means that, if the “no representative” option receives a majority of the votes, and the incumbent union is decertified, the NMB will not accept any future applications from any organization or individual seeking to represent the craft or class for a two-year period from the date of the decertification.

Comparison to the NLRA: In contrast, the National Labor Relations Act (NLRA) mandates only a 30 percent showing of interest requirement for a petition for decertification to be accepted, and the petition must then be supported by a majority vote. This lesser showing of interest makes it more likely that employees can collect enough authorization cards from co-workers to file a decertification petition. Moreover, under the NLRA, bargaining units tend to be more localized (usually a single facility or single location), giving employees the opportunity to communicate with more ease regarding decertification than a nationwide class or craft under the RLA.

The Bottom Line: The proposed NMB rule, if issued in its current form without change, is anticipated to streamline the process for decertification of a craft or class of employees under the RLA by eliminating the unnecessary and convoluted steps in the current decertification process. Notwithstanding the elimination of this hurdle, employees wishing to decertify their union would still need to collect authorizations from at least half of their co-workers simply in order to file an initial petition. Industry experts consider this showing of interest threshold to be difficult for many employee groups to achieve, because of the system-wide (i.e., nationwide) designation of crafts and classes under the RLA. Comments on the proposed rule changes will be accepted by the NMB until April 1, 2019. Following the close of the comments period, the NMB will hold a public hearing on the proposed rule in Washington, D.C.