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.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Authors
Similar Articles
Relevancy Powered by MondaqAI
 
In association with
Related Topics
 
Similar Articles
Relevancy Powered by MondaqAI
Related Articles
 
Related Video
Up-coming Events Search
Tools
Print
Font Size:
Translation
Channels
Mondaq on Twitter
 
Mondaq Free Registration
Gain access to Mondaq global archive of over 375,000 articles covering 200 countries with a personalised News Alert and automatic login on this device.
Mondaq News Alert (some suggested topics and region)
Select Topics
Registration (please scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.

Disclaimer

The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.

General

Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions