United States: NMB Adopts Rule Change To Simplify The Decertification Process Of Labor Unions

Executive Summary: On July 26, 2019, the National Mediation Board (NMB) announced that it is amending its regulations to provide a straightforward procedure for the decertification of labor unions. The Board articulates this change is necessary to fulfill the statutory mission of the Railway Labor Act (RLA), by "protecting employees' right to complete independence in the decision to become represented, to remain represented, or to become unrepresented." 

Background: As previously reported, the NMB published a Notice of Proposed Rulemaking on January 31, 2019, inviting public comment on a proposal to amend its decertification regulations under the RLA. Specifically, the NMB proposed to eliminate the "unnecessarily complex and convoluted" decertification procedures for a craft or class of employees who wish to become unrepresented. It also proposed a two year bar on accepting applications for the NMB to investigate a representation dispute, following a successful decertification of a craft or class. The decertification procedures had been described by many individuals and organizations as complicated, confusing, and an unnecessary hurdle to achieving decertification of a craft or class of employees. After consideration of the comments submitted in response to the NMB's proposed rule change, and following a public hearing on the matter, the NMB agreed.

The Former "Straw Man" Rule: Prior to the rule change, a craft or class of employees who wished to decertify must do so through the use of a "straw man."  Under the straw man procedure, employees were obligated to first identify an individual, or organization, who was willing to put their name forward as someone who purported to seek to represent the craft or class, with the understanding that this person or organization did not actually intend to serve as a representative. If the craft or class then met the "showing of interest" requirement to hold a representation election, meaning that at least 50 percent of the craft or class have signed an authorization card, the individual serving as a straw man would have his or her name listed on the election ballot. In order to achieve decertification, the majority of a craft or class of employees must then vote for the strawman (who, it is hoped, then disclaims interest in representation), or, alternatively, the majority must vote for no representation.

The New Rule: Direct Decertification: Under the new rule, the straw man requirement is effectively eliminated, allowing for direct decertification. Now, employees who wish to decertify will submit authorization cards that must "clearly and unambiguously state the employee's desire to no longer be represented by their incumbent union." The "showing of interest" requirement for decertification applications is the same as that for applications seeking union representation, that is, 50 percent of the employees eligible to vote in the craft or class. So long as the showing of interest is valid and sufficient, the NMB will 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. 

The NMB's Rationale: The NMB believes this rule will clarify the process for employees who wish to achieve decertification, and it provides a comprehensive rationale to support the change.  The Board first defended its statutory authority to make the rule change, citing the "broad discretion" afforded to the NMB with respect to the method of resolving representation disputes. The Board reasoned, "[s]ince employees have the right to reject representation under the RLA, inherent in the Board's authority to certify a representative is the power to certify that a particular group of employees has no representative." 

The Board found support for the change in the comments it received from various individuals and organizations. The Board noted the "many comments" it received detailing the confusion inherent in the straw man process, including comments describing the straw man process as "daunting," resulting in employees who "give up" on seeking decertification when the straw man process is explained to them. The Board articulated its belief that the new rule will resolve these issues: "Under the rule change, employees will now have the ability to directly express their desire to become unrepresented instead of hiding it behind a straw man."  The Board emphasized, "...direct decertification better protects the right of free choice of representatives by eliminating a confusing and counterintuitive process that requires employees to ostensibly seek representation to vindicate their right to be unrepresented." It cited to comments submitted in support of the change describing the new rule as "modest and sensible" and "strikes the proper balance between stability of labor relations ... and the statutory right of employees to 'determine who shall be the representative of the craft or class.'" The Board clarified that it is not adopting the rule change to "promote" decertification, but, rather, to fulfill its statutory role to act as a neutral "referee" by protecting employees' rights to free choice in representation, including the choice to be unrepresented. 

Two Year Bar: The NMB also adopted its proposed rule change to extend the two year bar on accepting applications seeking the NMB to investigate a representation dispute to decertifications (this two year bar is currently in place for 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 applications from any organization or individual seeking to represent the craft or class for a two year period from the date of the decertification.  The Board reasoned, "[e]mployees who have exercised their right to reject representation deserve a period of repose to transition to that direct [company] relationship and experience their workplace without a collective representative." It explained, "[t]his period of time allows employees to judge the advantages and disadvantages of their decision without the turmoil of an immediate organizing campaign."

The Bottom Line: The NMB's rule change is expected to streamline the process for decertification of a craft or class of employees under the RLA by eliminating the unnecessarily complex and convoluted steps in the former decertification process, and to give employees a reasonable period of repose following decertification. The NMB's final rule becomes effective August 26, 2019.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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