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[Federal Register Volume 75, Number 90 (Tuesday, May 11, 2010)]
[Rules and Regulations]
[Pages 26062-26089]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2010-11026]

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NATIONAL MEDIATION BOARD

29 CFR Parts 1202 and 1206

[Docket No. C-6964]
RIN 3140-ZA00

Representation Election Procedure

AGENCY: National Mediation Board.

ACTION: Final rule.

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SUMMARY: As part of its ongoing efforts to further the statutory goals 
of the Railway Labor Act, the National Mediation Board (NMB or Board) 
is amending its Railway Labor Act rules to provide that, in 
representation disputes, a majority of valid ballots cast will 
determine the craft or class representative. This change to its 
election procedures will provide a more reliable measure/indicator of 
employee sentiment in representation disputes and provide employees 
with clear choices in representation matters.

DATES: Effective Date: The final rule is effective June 10, 2010.

FOR FURTHER INFORMATION CONTACT: Mary Johnson, General Counsel, 
National Mediation Board, 202-692-5050, [email protected].

SUPPLEMENTARY INFORMATION:

I. Background

    Under Section 2, Ninth of the Railway Labor Act (RLA or Act), it is 
the duty of the National Mediation Board (NMB or Board) to investigate 
representation disputes ``among a carrier's employees as to who are the 
representatives of such employees * * * and to certify to both parties, 
in writing * * * the name or names of the individuals or organizations 
that have been designated and authorized to represent the employees 
involved in the dispute, and certify the same to the carrier.'' 45 
U.S.C. 152, Ninth. Upon receipt of the Board's certification, the 
carrier is obligated to treat with the certified organization as the 
employee's bargaining representative.
    The RLA authorizes the NMB to hold a secret ballot election or 
employ ``any other appropriate method'' to ascertain the identities of 
duly designated employee representatives. Section 2, Ninth. The Board's 
current policy requires that a majority of eligible voters in the craft 
or class must cast valid ballots in favor of representation. This 
policy is based on the Board's original construction of Section 2, 
Fourth of the RLA, which provides that, ``[t]he majority of any craft 
or class of employees shall have the right to determine who shall be 
the representative of the craft or class * * *.'' 45 U.S.C. 152, 
Fourth.
    The language of Section 2, Fourth and Section 2, Ninth was added to 
the RLA as part of the 1934 amendments and was directed at the 
continuing problem of company unions. As the Supreme Court noted:

    Experience had shown, before the amendment of 1934, that when 
there was no dispute as to the organizations authorized to represent 
the employees, and when there was willingness of the employer to 
meet such representative for a discussion of their grievances, 
amicable adjustment of differences had generally followed and 
strikes had been avoided. On the other hand, a prolific source of 
dispute had been the maintenance by the railroads of company unions 
and the denial by railway management of the authority of 
representatives chosen by their employees.

Virginian Ry. Co. v. System Fed'n No. 40, 300 U.S. 515, 545-546 (1937) 
(citations omitted). The Report of the House Committee on Interstate 
and Foreign Commerce on the 1934 amendments states that

[t]he Railway Labor Act of 1926, now in effect, provides that 
representatives of the employees, for the purpose of collective 
bargaining, shall be selected without interference, influence, or 
coercion by railway management, but it does not provide the 
machinery necessary to determine who are to be such representatives. 
These rights of the employees under the present act are denied by 
railway managements by their disputing the authority of the freely 
chosen representatives of the employees to represent them. A 
considerable number of railway managements maintain company unions, 
under the control of the officers of the carriers, and pay the 
salary of the employees' representatives, a practice that is clearly 
contrary to the purpose of the present Railway Labor Act, but it is 
difficult to prevent it because the act does not carry specific 
language in respect to that matter.

H.R. Rep. No. 73-1944, at 1 (1934). Accordingly, the report notes that 
``[m]achinery is provided for the taking of a secret ballot to enable 
the Board of Mediation to determine what representatives the employees 
desire to have negotiate for them with managements of the carriers in 
matter affecting their wages and working conditions.'' Id.
    The Board originally interpreted the language of Section 2, Fourth 
as requiring a majority of all those eligible to vote to choose a 
representative rather than a majority of the votes cast. As noted in 
the Notice of Proposed Rulemaking (NPRM), however, this interpretation 
of Section 2, Fourth, was reached ``not on the basis of legal opinion 
and precedents, but on what seemed to the Board best from an 
administration point of view.'' 1 NMB Ann. Rep. 19 (1935). That same 
Board also noted, ``[w]here, however, the parties to a dispute agreed 
among themselves that they would be bound by a majority of the votes 
cast, the Board took the position that it would certify on this basis, 
on the ground that the Board's duties in these cases are to settle 
disputes among employees.'' Id. In 1947, United States Attorney General 
Tom C. Clark, responding to a question from the NMB on its authority 
under Section 2, Fourth, stated his opinion that

the National Mediation Board has the power to certify a 
representative which receives a majority of the votes cast at an 
election despite the fact that less than a majority of those 
eligible to vote participated in the election. While the National 
Mediation Board has this power, it need not exercise it 
automatically upon finding that a majority of those participating 
were in favor of a particular representative.

40 U.S. Op. Att'y Gen. 541, at 544-545 (1947).

    On November 3, 2009, the NMB published a NPRM in the Federal 
Register inviting public comments for 60 days on a proposal to amend 
its RLA rules to provide that, in representation disputes, a majority 
of ballots cast will determine the craft or class representative. 74 FR 
56,750. In its NPRM, the Board stated its belief, based on the language 
of the RLA, principles of statutory construction, and Supreme Court 
precedent, that it has the authority to reasonably interpret Section 2, 
Fourth to allow the Board to certify as collective bargaining 
representative any organization which receives a majority of valid 
ballots cast in an election. While acknowledging that it has reaffirmed 
its policy of certifying a representative based on a majority of 
eligible voters on several occasions since 1935, the Board noted that 
this construction of Section 2, Fourth was adopted in an earlier era, 
under circumstances that are different from those prevailing in the 
rail and air industries today. Further, the Board noted that the 
current election procedures provide no opportunity for

[[Page 26063]]

employees to cast a ballot against representation and presume that the 
failure or refusal of an eligible voter to participate in an NMB-
conducted election to be the functional equivalent of a ``no union'' 
vote. Specifically, the Board proposed modifying its election 
procedures to determine the craft or class representative by a majority 
of valid ballots cast and provide employees with an opportunity to vote 
``no'' or against union representation. Subsequently, the NMB published 
a Notice of Meeting in the Federal Register inviting interested parties 
to attend an open meeting with the Board to share their views on the 
proposed rule changes regarding representation election procedures. 
Meeting Notice, 74 FR 57,427 (Nov. 6, 2009).

II. Notice-and-Comment Period

    In response to the NPRM, the NMB received 24,962 submissions during 
the official comment period from a wide variety of individuals, 
employees, air and rail carriers, trade and professional associations, 
labor unions, Members of Congress, law firms, and others. (Comments may 
be viewed at the NMB's Web site at http://www.nmb.gov) Additionally, 
the NMB received written and oral comments from the 31 individuals and 
representatives of constituent groups under the RLA that participated 
in the December 7, 2009 open meeting.
    Nearly 98 percent of the comments received in response to the NPRM 
were either: (1) Very general statements; (2) personal anecdotes of 
experience or participation in the NMB's election procedures; or (3) 
identical or nearly identical ``form letters'' or ``postcards'' sent in 
response to comment initiatives sponsored by various constituent groups 
such as the International Association of Machinists (IAM) and the 
Association of Flight Attendants (AFA). The remaining comments reflect 
strongly held views for and against the NMB's proposed change. The NMB 
has carefully considered all of the comments, analyses, and arguments 
for and against the proposed change.
    Although the Board is aware that the notice-and-comment period of 
the Administrative Procedure Act (APA) is not a referendum, it notes 
that the majority of the comments it received supported the proposed 
change. In addition to agreeing with the Board's position that it has 
the statutory authority to make this change and that the legislative 
history of the RLA supports such a change, these commenters applauded 
the NPRM as a positive change that would ensure that the majority of 
those who vote in a representation election will determine the outcome 
of that election. Many commenters in support of the NPRM noted that the 
current rule is contrary to common standards of democracy where the 
outcome of an election is determined by the majority of those who vote. 
Because a number of employees will not participate in any election, 
they argued, the current rule handicaps unions that must achieve what 
amounts to a ``supermajority'' in order to secure representation. Some 
commenters supporting the NPRM stated that the Board should follow the 
procedures utilized by the National Labor Relations Board (NLRB) so all 
employees under private-sector Federal labor law will be subject to 
uniform representation election procedures. They argue that the 
election procedures in NMB elections can be confusing to some employees 
and frustrating to others who wish to vote against union representation 
but have no way to do so. Congressman Glenn Nye and others state that 
aviation and rail workers should not be subject to a more ``onerous 
process'' than other workers when deciding whether to seek union 
representation. Other commenters in favor of the NPRM argue that there 
has been a decrease in union organizing and this change will help 
reverse that trend. A number of political scientists stated that ``the 
proposed rule change represents a shift from long-established practice, 
but it is a shift long overdue. Since 1935, when the [original 
procedure] was adopted, electoral technology has improved and our 
perspective on good electoral practice progressed. The old rule 
reflects the thinking of an earlier era; the proposed change is 
consistent with the current state of our knowledge and understanding.'' 
\1\ Some of the arguments in favor of the NPRM will be discussed in 
greater detail in the discussion that follows; however, the preamble 
will focus on the Board's response to the substantive arguments raised 
by those opposed to the NPRM.
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    \1\ Professors Margaret Levi, Elinor Ostrom, Robert Keohane, 
Robert Putnam, Peter Katzenstein, Henry Brady, Dianne Pinderhughes, 
Kent Jennings, Ira Katznelson, and Theda Skocpol submitted a comment 
in support of the NPRM.
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III. Summary of Comments on the NMB's Proposed Change To its Election 
Procedures

    While the NPRM only concerns one aspect of the Board's election 
procedures, namely the Board's interpretation of Section 2, Fourth in 
determining how best to ascertain the clear, uncoerced choice of a 
bargaining representative, if any, by the affected employees, the 
commenters expressed widely divergent views of the proposed change and 
the Board's deliberation and process in formulating the NPRM. The major 
comments received and the Board's response to those comments are as 
follows.

A. Motions for Disqualification

    Following the close of the comment period under the NPRM, by letter 
dated January 8, 2010, ATA \2\ requested that Board Members Harry 
Hoglander and Linda Puchala disqualify themselves from further 
participation in the rulemaking because the ``available facts give the 
appearance that Members Hoglander and Puchala have prejudged the 
specific issues.'' On January 15, 2010, Right to Work also filed a 
motion requesting the disqualification of Members Hoglander and 
Puchala. After careful review of the arguments presented, there is no 
basis for either Member Hoglander's or Member Puchala's recusal or 
disqualification from the rulemaking. Rulemaking requires a decision 
maker to choose between competing priorities in proposing a rule. The 
subject matter of a rulemaking--and this one is no exception--is often 
controversial. Prejudgment and/or bias is not established by the mere 
fact, however, that a proposal is controversial or that the decision 
maker brings his or her own beliefs, philosophy and experience to bear 
when choosing between two competing interests to propose a policy 
course. As discussed below, ATA and Right to Work have failed to 
establish ``a clear and convincing showing that [an agency member] has 
an unalterably closed mind on matters critical to the disposition of 
the rulemaking.'' Ass'n of Nat'l Adver. v. Fed. Trade Comm'n, 627 F2d 
1151, 1154 (DC Cir. 1979).
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    \2\ ATA members American Airlines, Continental Airlines, 
Southwest Airlines, United Airlines, UPS Airlines, and US Airways 
did not join in this motion.
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    ATA and Right to Work each contend \3\ that ``[p]ublicly available 
facts give the appearance that Members Hoglander and Puchala have 
predetermined the issues raised by the November 3 NPRM.'' Neither ATA 
nor Right to Work, however, cites any statements by either Member 
Hoglander or Member Puchala concerning the subject matter of the NPRM 
as the basis for their assertion. Instead, they rely on the following 
as evidence of bias and prejudgment:
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    \3\ Both motions may be viewed at the NMB's Web site at http://www.nmb.gov.

    (1) An alleged inadequacy of the Board's process for proposing 
changes to its election procedure rules, by publishing an NPRM in 
the Federal Register with a 60-day comment

[[Page 26064]]

period and holding an open public meeting rather than a hearing 
similar to the one held in Chamber of Commerce, 14 NMB 347 (1987);
    (2) Chairman Dougherty's November 2, 2009 letter to Republican 
United States Senators McConnell, Isakson, Roberts, Coburn, Gregg, 
Enzi, Hatch, Alexander, and Burr in which she asserted that she was 
excluded from drafting of the NPRM and excluded from discussions 
regarding the timing of the NPRM;
    (3) Inferences drawn from the timing of the NPRM and 
representation disputes in several large crafts or classes of 
employees at the post-merger Delta Air Lines. ATA and Right to Work 
also rely on statements by Association of Flight Attendants-CWA 
(AFA) President Patricia Friend during an August 24, 2009 \4\ 
interview on the Union Edge Talk Radio Show regarding the Board's 
composition and election rules and AFA's application regarding the 
Flight Attendant craft or class at Delta; and
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    \4\ ATA's motion cites the original broadcast date of the 
interview as August 25, 2009, however, a search of the archives at 
http://theunionedge.com reveals the broadcast date to be August 24, 
2009.
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    (4) The leadership positions that Members Hoglander and Puchala 
previously held with the Air Line Pilots Association (ALPA) and the 
AFA, respectively.

It cannot be questioned that parties to an administrative proceeding 
have a right to a fair and open proceeding before an unbiased decision 
maker. In their motions, ATA and Right to Work challenge both the 
adequacy and fairness of the procedure chosen by the Board majority to 
propose a change to the election rules and the Board majority's 
impartiality as decision makers. As discussed below, the Board majority 
finds that there is no merit to either challenge.
    With regard to the procedure chosen by the Board majority, ATA and 
Right to Work characterize informal rulemaking under the APA as a 
flawed process with an inadequate comment period that did not provide 
for a thorough evidentiary hearing that included the taking of 
testimony under oath and the cross-examination of witnesses. By 
utilizing the notice-and-comment procedures of informal rulemaking 
under the APA, however, the Board followed an open administrative 
process and interested persons were given an adequate comment period 
\5\ as well as access to all meeting testimony and comments received. 5 
U.S.C. 553(c). Under the APA, the trial-like hearing advocated by ATA 
and Right to Work is required only when an agency engages in formal 
rulemaking. Formal rulemaking, however, is used when an agency's rules 
are required by statute ``to be made on the record after opportunity 
for an agency hearing.'' Id. The RLA contains no such provision and 
such formal procedures have long been disfavored when not required by 
statute. See, e.g., Vermont Yankee Nuclear Power Corp. v. Natural Res. 
Def. Council, 435 U.S. 519 (1978).
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    \5\ Executive Order 12,866 states that ``each agency should 
afford the public a meaningful opportunity to comment on any 
proposed regulation, which in most cases should include a comment 
period of not less than 60 days.'' Exec. Order No. 12,866, 58 FR 
51,735 (1993).
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    ATA and Right to Work also assert that there is evidence of bias in 
the Agency's failure to follow a procedure similar to that used in 
Chamber of Commerce, 14 NMB 347 (1987), and to conduct an evidentiary 
hearing to consider whether to change its election rules. See also In 
re Chamber of Commerce, 12 NMB 326 (1985) (notice of hearing). In that 
case, the Board chose to not follow the APA procedures described above 
because it had not yet decided whether to initiate the rulemaking 
process in response to the United States Chamber of Commerce's 
(Chamber) petition to amend the Board's rules. In its decision on the 
format of the proceeding with regard to those petitions, the Board 
stated that ``5 U.S.C. 553 refers to the actual rule-making process, a 
process which the Board has not initiated at this time, should it ever 
do so.'' In re Chamber of Commerce, 13 NMB 90, 93 (1986). The Board 
further stated that, ``in making its determination of whether or not to 
propose amendments to its rules, [the NMB] has the discretion to 
conduct the procedures preliminary to that determination in any manner 
which it finds to be appropriate.'' Id. at 94 (emphasis added). Thus, 
the Board has in no way bound itself to the procedures it chose to 
follow in the Chamber of Commerce case. Further, in the Board's recent 
decision in Delta Air Lines, Inc., 35 NMB 129, 132 (2008), it stated 
that it would not make a change to its election procedures ``without 
first engaging in a complete and open administrative process to 
consider the matter.'' Contrary to the assertions of ATA and Right to 
Work, in deciding to adopt this change through the informal rulemaking 
provisions of the APA, the Board has followed the appropriate procedure 
that provided for public participation, for fairness to the affected 
parties, and for the agency to have before it information relevant to 
the particular administrative problem. MCI Telecommunications Corp. v. 
Fed. Commc'n Comm'n, 57 F.3d 1136, 1141 (DC Cir. 1995).
    With regard to the impartiality of Members Hoglander and Puchala as 
agency decision makers, ATA and Right to Work contend that the facts 
show that they have prejudged the issues and should be disqualified 
from further participation. In National Advertisers, 627 F.2d at 1154, 
the court found that disqualification of a decision maker in a 
rulemaking proceeding is required ``only when there is a clear and 
convincing showing that [an agency member] has an unalterably closed 
mind on matters critical to the disposition of rulemaking.'' In 
reaching this decision, the court rejected the contention that the 
standard used to disqualify a decision maker in an adjudicatory 
hearing, namely whether ``a disinterested observer may conclude that 
the [decision maker] has in some measure adjudged the facts as well as 
the law of a particular case in advance of hearing it,'' because of the 
fundamental differences between the nature of adjudicatory proceedings 
and the nature of rulemaking proceedings. Id. at 1168 (citing 
Cinderella Career & Finishing Sch., Inc. v. Fed. Trade Comm'n, 425 F.2d 
583, 591 (DC Cir. 1970)). The court noted that:

    The object of the rule making proceeding is the implementation 
or prescription of law or policy for the future, rather than the 
evaluation of a respondent's past conduct. Typically, the issues 
relate not to the evidentiary facts, as to which the veracity and 
demeanor of witnesses would often be important, but rather to the 
policy-making conclusions to be drawn from the facts * * *. 
Conversely, adjudication is concerned with the determination of past 
and present rights and liabilities. Normally there is involved a 
decision as to whether past conduct was unlawful, so that the 
proceeding is characterized by an accusatory flavor and may result 
in disciplinary action.

Id. at 1160 (quoting Attorney General's Manual on the Administrative 
Procedure Act 14 (1947)).

    Because the object of rulemaking is the implementation of law or 
policy to the future, the agency decision maker functions like a 
legislator when participating in rulemaking. The administrator is 
expected to bring his or her views and insights to bear on the issues 
confronting the agency. In requiring ``compelling proof'' that an 
administrator is unable to carry out his or her duties in a 
constitutionally permissible manner to compel disqualification, the 
court stated that:

[t]he requirements of due process clearly recognize the necessity 
for rulemakers to formulate policy in a manner similar to 
legislative action * * *. We would eviscerate the proper evolution 
of policymaking were we to disqualify every administrator who has 
opinions on the correct course of his agency's future action.''

Id. at 1174. For example, in National Advertisers, 627 F.2d at 1154, 
the court determined that the Chairman of the

[[Page 26065]]

Federal Trade Commission (FTC or Commission) was not disqualified from 
participating in rulemaking proposing restrictions on advertising 
directed at children despite public comments in which he (1) asserted 
that children could not distinguish between advertising and other forms 
of communication; (2) cited Supreme Court precedent giving the 
Commission great discretion in declaring unfair trade practices; and 
(3) discussed the negative effects of advertising on children. The 
court concluded that these statements were a discussion of a legal 
theory by which the Commission could adopt a rule if circumstances 
warranted and did not demonstrate the Chairman's unwillingness or 
inability to consider opposing arguments.
    As noted above, ATA and Right to Work do not rely on any statements 
by either Member Hoglander or Member Puchala to establish bias and 
prejudgment. They rely only on statements in an interview given by 
Patricia Friend, President of AFA; the opinion of Chairman Dougherty 
expressed in a letter to U.S. Senators; and inferences drawn by ATA and 
Right to Work from the timing of the NPRM and the Board Members' 
biographies. These statements, opinions, and inferences are 
insufficient to compel either recusal or disqualification. The 
transcript of Ms. Friend's interview states in relevant part:

    Host: And we were talking just very briefly about the new member 
that has been appointed to the NMB, Linda Puchala and President 
Friend can you tell us a little bit about her and what her 
background is?
    Pat Friend: Yes, Linda was--I think I mentioned this just before 
the break--she was from--if I get my dates right, from like 1979 to 
1986 the President of the Association of Flight Attendants. So we've 
known her for a long time and then for the past five or six years 
she actually has worked at the National Mediation Board specifically 
doing some mediation, but mostly running the alternate dispute 
resolution part of the Board. Linda is in my experience, is about 
one of the best consensus builders that I've ever met so we were 
just thrilled that we were able to get her nominated and confirmed 
and to do it in really a timely fashion, you know, I can't take 
credit, full credit for this, because we had lots of help with in 
the labor movement and within the Obama administration, but for a 
second tier agency which the National Mediation Board is, to get a 
member nominated and confirmed before July was really an outstanding 
effort. There was a lot of people working on it and--but, it was 
very, very important to us that we have a properly, sort of fair, 
board in place before this election between the Northwest and the 
Delta Flight attendants takes place.

Exhibit A, p. 6 January 4, 2010 Written Comment in response to NPRM 
from Delta Airlines. These statements have no bearing on whether or not 
Member Puchala has a closed mind with regard to the NPRM. Ms. Friend's 
statement establishes only her desire for a fair administrative process 
and her support for Member Puchala's appointment, describing Member 
Puchala as a ``consensus builder.'' She is not advocating that the 
Board make specific changes to its procedures. Further, Ms. Friend was 
not alone in making public statements in support of Member Puchala. In 
a May 5, 2009, Business Review article, ``Delta backs Obama's labor 
board nominee,'' Mike Campbell, Delta executive vice president of human 
resources and labor relations, stated ``Ms. Puchala has years of 
valuable experience, including time with the NMB. She enjoys broad 
support among the airline industry and labor community. We look forward 
to her confirmation to become a member of the NMB.'' In that same 
interview, Campbell also stated, ``It is equally important to our 
employees to quickly resolve representation for those workgroups in 
which representation remains unresolved. To that end, we urge the 
Senate to confirm Linda Puchala as soon as possible.''
    ATA and Right to Work also rely on the differing opinions among the 
Board Members as to whether and how to consider amending the Board's 
election procedures. As Chairman Dougherty's dissent to the NPRM makes 
clear, she advocated a different approach to the Board's consideration 
of amending the election rules. The Board majority, however, followed 
the mandates of the APA in considering, drafting, adopting, and 
promulgating the NPRM. The APA requires that a NPRM must include the 
following: ``(1) A statement of the time, place, and nature of public 
rulemaking proceedings; (2) reference to the legal authority under 
which the rule is proposed; and (3) either the terms or substance of 
the proposed rule or a description of the subjects and issues 
involved.'' 5 U.S.C. 553(b). The November 3, 2009 NPRM met these 
requirements. To the extent that ATA and Right to Work question the 
Board majority's deliberative process, the Board notes that this 
process is an internal agency matter and outside the scope of the 
rulemaking proceedings.
    It is clear that the Chairman disagreed with her colleagues on both 
whether any change to the current voting procedures is necessary and 
how such a change should be proposed. However, the Chairman's 
dissenting views were published in the Federal Register with the NPRM 
and have been incorporated in many comments opposed to the NPRM. Her 
admittedly different policy view as a dissenting member does not 
establish that Members Hoglander and Puchala were not free, in theory 
and in reality, to change their mind upon consideration of the 
presentations and comments made by those who would be affected. As the 
court in National Advertisers, recognized:

    An administrator's presence within an agency reflects the 
political judgment of the President and Senate. As Judge Prettyman 
of this court aptly noted, a ``Commission's view of what is best in 
the public interest may change from time to time. Commissions 
themselves change, underlying philosophies differ, and experience 
often dictates changes.''

627 F.2d 1151, 1174 (quoting Pinellas Broadcasting Co. v. Fed. Commc'n 
Comm'n, 230 F.2d 204, 206 (DC Cir. 1956), cert. denied. 350 U.S. 1107 
(1956)).
    ATA and Right to Work infer some bias because of the existence of 
representation disputes among employees at Delta. As discussed more 
fully below in Section III.C., the Board, however, has continued to 
carry out all its obligations in representation matters including 
investigating representation disputes, holding elections and certifying 
the results of those elections during the rulemaking process. Under 
Section 2, Ninth of the RLA, neither the Board nor carriers may 
initiate a representation proceeding because ``Congress left no 
ambiguity in Section 2, Ninth: the Board may investigate a 
representation dispute only upon request of the employees involved in 
the dispute.'' Ry. Labor Executives' Ass'n v. NMB, 29 F.3d 655, 664 (DC 
Cir. 1994) (emphasis in original) (deciding the narrow issue of who can 
initiate a representation dispute under Section 2, Ninth). Therefore, 
the timing of when employees or their representatives file applications 
or withdraw those applications is not within the control of the Board.
    Right to Work also contends that an inference of bias and 
prejudgment should be drawn from the fact that Members Hoglander and 
Puchala previously held leadership positions in unions. This contention 
has no merit. An administrative official is presumed to be objective 
and ``capable of judging a particular controversy fairly on the basis 
of its own circumstances.'' United States v. Morgan, 313 U.S. 409, 421 
(1941). Whether the official is engaged in adjudication or rulemaking, 
the mere proof that he or she has taken a public position, expressed 
strong views or holds an underlying philosophy with respect an issue in 
dispute cannot overcome that presumption. Hortonville

[[Page 26066]]

Joint Sch. Dist. No. 1 v. Hortonville Educ. Ass'n, 426 U.S. 482 (1976). 
See also C & W Fish Co. v. Fox, 931 F.2d 1556, 1564-1565 (DC Cir. 1991) 
(finding no clear and convincing evidence of an unalterably closed mind 
where immediately prior to appointment to position where he adopted a 
drift gillnet ban, agency decision maker had served as chairman of the 
Florida Marine Fisheries Commission, was an outspoken advocate of 
banning drift gillnets, and publicly stated that ``this kind of gear 
[i.e., drift gillnets] should be eliminated.''). Thus, while the prior 
union positions held by Members Hoglander and Puchala may evince an 
underlying philosophy, it is hardly clear and convincing evidence of an 
unalterably closed mind.
    ATA and Right to work have presented no evidence, let alone clear 
and convincing evidence, that establishes that either Member Hog lander 
or Member Puchala are unwilling to appropriately consider comments on 
the proposed rule or possess an unalterably closed mind on the issues 
in the NPRM. Accordingly, neither recusal nor disqualification is 
necessary.

B. Process Leading to the NPRM

    In the oral and written statements received at the December 7, 2009 
meeting and in written comments submitted pursuant to the NPRM, 
commenters including Delta Airlines, Inc. (Delta), the Air Transport 
Association (ATA),\6\ the Regional Airline Association (RAA), the 
Airline Industrial Relations Conference (Air-Con), the National Railway 
Labor Conference (NRLC), the labor and employment law firm of Littler 
Mendelson, P.C. (Littler), the National Air Transportation 
Association's Airline Services Council (ASC), Claude Sullivan, an RLA 
practitioner, the National Right to Work Legal Defense Foundation, 
Inc., (Right to Work)), Regional Air Cargo Carriers Association 
(RACCA), Bombardier Aerospace/Flexjet (Flexjet) and some Members of 
Congress suggest that, by proceeding with the NPRM, the Board has 
compromised its neutrality and surrendered the integrity necessary to 
carry out its representation duties under the Act. These commenters 
rely on statements in an August 2009 interview given by AFA president 
Patricia Friend, the withdrawal of pending applications involving 
employees at Delta by the IAM and AFA around the time of the 
publication of the NPRM, and two letters from Chairman Dougherty to 
United States Senators Johnny Isakson, Bob Corker, Jim Bunning, Robert 
Bennett, Saxby Chambliss, George Voinovich and Orrin Hatch as support 
for their belief that the Board's actions leading up to the NPRM were 
inadequate and improper. The commenters suggest that the Chairman's 
correspondence indicates that the Board majority acted with undue haste 
and followed an inadequate internal process in deciding to proceed with 
the NPRM. Other commenters, including a number of Republican Members of 
the United States House of Representatives,\7\ simply characterized the 
NPRM as ``a politically motivated decision that tilts airline and rail 
representation elections in the favor of organized labor. This decision 
is too important to be decided by two appointed and unelected Democrats 
who have chosen to ignore legal and policy precedents that have 
governed representation rules for airline and rail employees for more 
than 75 years.''
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    \6\ ATA is the principal trade and service organization of the 
Unites States' scheduled airline industry. The following members of 
the ATA did not join in the written statement submitted at the 
December 7 open meeting: Continental Airlines, Inc., and American 
Airlines, Inc. In addition, ATA member Southwest Airlines, which is 
neutral on the NPRM, filed a separate comment. Southwest's position 
is discussed in detail later in this document.
    \7\ A comment opposed to the proposed change was submitted by 
Representatives Nathan Deal, Roy Blunt, Paul C. Broun, Gregg Harper, 
John A. Boehner, John K. Kline, Lynn A. Westmorland, Jack Kingston, 
Bob Goodlatte, Gary Miller, Pete Sessions, John Campbell, John 
Linder, Doug Lamborn, Jean Schmidt, Vern Buchanan, Joe Wilson, Sue 
Myrick, Mike Rogers, Rob Bishop, Bob Inglis, Dean Heller, Harold 
Rogers, Phil Gingrey, Devin Nunes, Wally Herger, Eric Cantor, Kevin 
McCarthy, and Jason Chaffetz.
---------------------------------------------------------------------------

    The Board disagrees with those comments that assert that it has 
abandoned its neutrality at any point during this rulemaking. The Board 
majority followed the mandates of the APA in considering, drafting, 
adopting, and promulgating the NPRM. The APA requires that a NPRM must 
include the following: ``(1) A statement of the time, place, and nature 
of public rulemaking proceedings; (2) reference to the legal authority 
under which the rule is proposed; and (3) either the terms or substance 
of the proposed rule or a description of the subjects and issues 
involved.'' 5 U.S.C. 553(b). The November 3, 2009 NPRM met these 
requirements. To the extent that the dissent and other commenters 
question the Board majority's deliberative process, the Board notes 
that this process is an internal agency matter and outside the scope of 
the rulemaking proceedings. In the NPRM, the Board majority expressed a 
view that a change should be proposed and Chairman Dougherty disagreed. 
Both views, however, were expressed in the NPRM and have served as a 
basis for comment.
    Some Members of Congress suggest that the proposed change to the 
election procedure is too important to be entrusted to the appointed 
members of the NMB. For the following reasons, the Board disagrees. 
First, in the NPRM, the Board is proposing a change to its own 
interpretation of the RLA. Thus, the ``legal and policy precedents'' at 
issue are the Board's own determinations. It is without doubt that an 
agency is free to change its interpretations and its policies so long 
as the new policy or interpretation is permissible under the statute, 
there are good reasons for it, and the agency believes it to be better. 
Fed. Commc'n Comm'n v. Fox Television Stations, 129 S. Ct. 1880, 1811 
(2009). Second, there are safeguards applicable to the Board's actions. 
While it is true that the Board Members are not elected officials 
subject to recall, they are subject to confirmation by the Senate and 
have limited terms. Third, acting pursuant to the notice-and-comment 
procedures of informal rulemaking under the APA, the Board followed an 
open administrative process and interested persons were given an 
adequate comment period as well as access to all meeting testimony and 
comments received. 5 U.S.C. 553(c).\8\ Fourth, under the APA, any final 
rule promulgated by the Board is subject to judicial review.
---------------------------------------------------------------------------

    \8\ Under the APA, a trial-like hearing where parties can submit 
evidence and cross examine witnesses, advocated by some commenters, 
is only required when an agency engages in formal rulemaking. Formal 
rulemaking, however, has long been disfavored where not required by 
statute. The RLA does not require formal rulemaking. As the Supreme 
Court noted in Vermont Yankee, 435 U.S.at 547, a standard of review 
that would cause agencies to engage in formal rulemaking in all 
instances would lead to a loss of ``all of the inherent advantages 
of informal rulemaking.''
---------------------------------------------------------------------------

C. NPRM's Effect on Processing of Representation Cases

    Many of the commenters who suggested that the Board followed 
improper procedures in formulating the NPRM also suggest, as noted 
above, that the NPRM has adversely affected the neutrality and 
integrity of the Board's representation case processing. Delta, in 
particular, states that it and its employees have been ``singled out 
for discriminatory treatment'' as a result of the NPRM since 
``[r]epresentation cases at other carriers filed in the summer of 2009 
have proceeded to resolution under the existing rules; only those at 
Delta have been delayed, and then withdrawn, to await the new rules.'' 
Contrary to these comments, the Board has continued to carry out all 
its

[[Page 26067]]

obligations in representation matters including investigating 
representation disputes, holding elections and certifying the results 
of those elections during the rulemaking process. The Board has also 
followed its standard procedures with respect to the matters involving 
IAM, AFA, and Delta.
    The decision to initiate a representation proceeding is not within 
the Board's control. As the United States Court of Appeals for the 
District of Columbia Circuit stated ``Congress left no ambiguity in 
Section 2, Ninth: the Board may investigate a representation dispute 
only upon request of the employees involved in the dispute.'' Ry. Labor 
Executives' Ass'n, 29 F.3d at 664 (emphasis in original). On July 29, 
2009, AFA filed an application with the Board alleging that Delta and 
Northwest Air Lines (Northwest) constituted a single carrier for 
representation purposes with respect to employees in the Flight 
Attendants craft or class. On August 13, 2009, IAM filed three separate 
applications alleging that Delta and Northwest constituted a single 
carrier for representations purposes with respect to employees in the 
crafts or classes of Plant Guards, Simulator Technicians, and Fleet 
Service. Consistent with the Board's standard practice, each of these 
applications was assigned a ``CR'' file number and was not docketed as 
an ``R'' case.\9\
---------------------------------------------------------------------------

    \9\ Applications invoking the Board's services in representation 
disputes are docketed as ``R'' cases. ``CR'' numbers are assigned to 
applications requiring pre-docketing investigation, such as craft or 
class, system, jurisdiction, or other appropriate issues. 
Memorandum: NMB Policy for the Assignment/Conversion of ``CR'' files 
and ``R'' Case Dockets, 7 NMB 131 (1979). Once the pre-docketing 
investigation is complete, the case will be docketed as an ``R'' 
case for resolution pursuant to an election.
---------------------------------------------------------------------------

    Chairman Dougherty's October 28, 2009, letter, relied on by Delta 
and others, expresses her view of the relationship between the Board's 
policy on the use of hyperlinks and AFA's then-pending application 
regarding the Flight Attendants craft or class at Delta. In particular, 
this letter reflects the Chairman's disagreement with her colleagues 
over their conclusion that the Board's hyperlink policy was an issue 
intertwined with the pre-docketing investigation of AFA's application.
    In a notice dated February 28, 2008, the Board stated that it had 
decided to remove the hyperlink to the voting Web site from the 
Agency's Web site as a precautionary measure ``to prevent any outside 
party from possibly tracking the IP address of persons who visit the 
voting Web site.'' Removal of Internet Voting Hyperlink on Board's Web 
site, 35 NMB 92 (2008). Noting that the Board may view use of 
hyperlinks as possible evidence of election interference, the Board 
requested that participants in representation elections not post a 
hyperlink to the Board's voting Web site. Id. Subsequently, the use of 
hyperlinks to the Board's voting Web site in campaign materials became 
an issue in a 2008 representation election among Delta's flight 
attendants. Delta raised concerns about potential interference after a 
hyperlink to the Board's voting Web site was included in e-mails from 
an AFA organizer to flight attendant employees. In a determination, the 
Board noted its policy regarding hyperlinks and while acknowledging 
that the ``hyperlink in this instance was included in an email rather 
than on a Web site,'' it reiterated its statement that ``the Board may 
consider hyperlinks to the voting Web site as possible evidence of 
election interference.'' Notice Re: Carrier and Union Conduct, 35 NMB 
158 (2008). On July 22, 2009, several days before it filed its 
application, AFA requested the Board to reconsider its hyperlink policy 
``because of anticipated representation elections at Delta Airlines.'' 
In the view of the Board majority, the issue of the use of hyperlinks 
in representation elections had to be resolved before the Board could 
move forward with the investigation of AFA's application.
    Shortly before the publication of the NPRM, IAM sought withdrawal 
of its Fleet Service application. Shortly after the publication of the 
NPRM, AFA sought withdrawal of its Flight Attendant application. 
Similar to the decision to initiate representation proceedings, the 
decision whether to withdraw an application rests solely with the 
organization that filed the application. Upon receipt of those 
requests, again pursuant to its standard procedure, the Board granted 
the respective withdrawals. While the NMB's bar rules at 29 CFR 
1206.4(b)(3) provide for a one-year bar where a ``docketed 
application'' has been dismissed based on a withdrawal of the 
application, no bar applies where the application was assigned a CR 
file number and not ``docketed'' in the well-established sense of the 
term by conversion to an ``R'' case. US Airways, Inc., 27 NMB 565 
(2000); Trans World Airlines/Ozark Airlines, 14 NMB 343 (1987). The IAM 
application with respect to Plant Guards remains under investigation. 
The Board issued its single carrier determination with respect to the 
Simulator Technician craft or class on December 23, 2009, converted the 
application to an ``R'' case, and authorized a representation election 
in the Simulator Technician craft or class at Delta on January 11, 2010 
with a tally held on February 25, 2010.

D. The Board's Statutory Authority for the Proposed Change

    Almost all of the comments received in opposition to the NPRM 
question whether the NMB possesses the statutory authority to make the 
proposed change to its election rules. For example, Delta cites ``plain 
language'' of Section 2, Fourth and Section 2, Ninth for the 
proposition that the choice of representative must be made by a 
``majority'' of employees in the craft or class, and states that the 
Supreme Court has approved the Board's long-standing interpretation 
that ``majority'' is a majority of eligible voters rather than a 
majority of ballots cast. Several commenters opposed to the NPRM state 
that language of Section 2, Fourth which provides that ``[t]he majority 
of the craft or class of employees shall have the right to determine 
who shall be the representative of the craft or class of employees for 
the purposes of this chapter,'' is a clear statutory mandate that the 
Board must certify a representative on the basis of the majority of 
eligible voters.
    In contrast, those comments supporting the NPRM asserted that the 
Board has clear statutory authority and discretion to adopt the 
proposed change to its election process. For example, the TTD states 
that ``[t]he language of the RLA itself dictates no particular 
procedure to determine the majority will, much less the election 
procedure currently followed by the Board.'' The TTD, IAM, AFA, and 
others note that during the Board's history it has used a variety of 
methods to resolve representation disputes, exercising its discretion 
as circumstances warranted.
    The commenters who question the Board's statutory authority 
essentially contend that the language of Section 2, Fourth is 
unambiguous and compels the NMB to certify representatives as it does 
under its existing procedures: when a majority of eligible voters in 
the craft or class cast vote in favor of representation. Thus, these 
commenters contend that ``majority of any craft or class of employees'' 
must only be interpreted to mean the majority of all eligible voters. 
Having reviewed these comments, the NMB, however, is not persuaded and 
continues to believe that the language of the statute is ambiguous and 
that the proposed change--to certify a representative on the basis of a 
majority of valid ballots cast--is within the Board's statutory 
authority and discretion under the RLA. As noted in the NPRM, the Board 
believes that

[[Page 26068]]

under its broad statutory authority it may reasonably interpret Section 
2, Fourth to certify a representative based on a majority of ballots 
cast.
    As noted by many comments both opposing and supporting the NMB's 
proposed change, the language of Section 2, Fourth was taken from a 
rule announced by the NMB's precursor, United States Railroad Labor 
Board (Railroad Board), under the Transportation Act of 1920. Virginian 
Ry., 300 U.S. at 561. These Railroad Board decisions submitted as part 
of the IAM's comment on the NPRM lend support to the NMB's proposed 
change. In Decision No. 119, International Ass'n of Machinists et al. 
v. Atchison, Topeka & Santa Fe Ry. et al., 2 Dec. U.S. Railroad Board, 
87, 96, par. 15, the Railroad Board held that ``[t]he majority of any 
craft or class of employees shall have the right to determine what 
organization shall represent members of such craft or class.'' This 
rule was interpreted by the Railroad Board in Decision No. 1971, 
Brotherhood of Railway & Steamship Clerks v. Southern Pacific Lines, 4 
Dec. U.S. Railroad Labor Board 625, 629:

    The Board had previously in principle 15 of Decision No. 119 
ruled that ``the majority of any craft or class of employees shall 
have the right to determine what organization shall represent 
members of such craft or class'' in negotiating agreements.
    The purpose of the Railroad Labor Board was to give all the 
employees to be affected the privilege of expressing their choice. 
The board could not force any employee nor all of the employees to 
vote. It could only give all a fair opportunity. It was obviously 
the meaning and the purpose of the board that a majority of the 
votes properly cast and counted in an election properly held should 
determine the will and choice of the class * * *.
    Decision--The Railroad Labor Board decides that a majority of 
the legal votes cast in this election will determine who shall be 
the representatives of the employees.

    The legislative history of Section 2, Fourth also supports the 
NMB's position that such an interpretation is not contrary to either 
the language of the RLA. The report of the Senate Committee on 
Interstate and Foreign Commerce on the 1934 amendments, states ``[t]he 
bill specifically provides that the choice of representatives of any 
craft of craft shall be determined by a majority of the employees 
voting on the question.'' S. Rep. No. 73-1065, at 2 (1934).
    In his comment opposing the NPRM, Rep. Darrell Issa also reminds 
the Board that under the tenets of statutory construction, ``it is 
assumed that Congress expresses its intent through the ordinary meaning 
of its language. * * * [and] where the meaning of the relevant 
statutory language is clear, then no further inquiry is required.'' In 
the instant case, as discussed above, the Board believes that the 
language of Section 2, Fourth is open to interpretation, and would also 
note as, Attorney General Tom C. Clark observed that

when the Congress desires that an election shall be determined by a 
majority of those eligible to vote rather than by a majority of 
those voting, the Congress knows well how to phrase such a 
requirement. For example, in Section 8(a)(3)(ii) of the National 
Labor Relations Act, as amended by the Labor Management Relations 
Act, * * * the Congress has required that before any union shop 
agreement may be entered into, the National Labor Relations Board 
must certify `that at least a majority of the employees eligible to 
vote in such election have voted to authorize such labor 
organization to make such an agreement.'

40 Op. Att'y Gen. at 544 (emphasis in original).\10\
---------------------------------------------------------------------------

    \10\ In 1947, United States Attorney General Tom C. Clark, 
responding to a question from the NMB on its authority under Section 
2, Fourth, stated his opinion that the Board has the power to 
certify a representative which receives a majority of the votes cast 
at an election despite the fact that less than a majority of those 
eligible to vote participated in the election.

    Delta also contends that the Supreme Court has ``examined the 
statutory language at issue and [has] approved of the Board's long-
standing interpretation of the command of Section 2, Fourth as 
requiring majority participation in an election. '' While the Board 
agrees that the Supreme Court has upheld the Board's current 
interpretation of Section 2, Fourth, the Board believes the Court's 
decisions support the Board's view that the current interpretation is 
not compelled by the statute. \11\ In Virginian Railway , the Court, in 
rejecting a challenge to a certification based on a majority of ballots 
cast, stated that
---------------------------------------------------------------------------

    \11\ Delta also cites Switchmen's Union of North America v. NMB, 
320 U.S. 297, 300 (1943) and Brotherhood of Railway and Steamship 
Clerks v. Ass'n for the Benefit of Non-Contract Employees, 380 U.S. 
650, 659 (1965) (ABNE), for the proposition that the right protected 
by Section 2, Ninth is the ``right of the majority of employees in 
the craft or class to determine who shall be their representative.'' 
Once again, the Board agrees with Delta that the RLA gives the Board 
the power to resolve representation disputes and to certify a 
representative selected by a majority of any craft or class of 
employees. In neither decision, however, did the Court state that 
the language of Section 2, Fourth, referring to a ``majority of any 
craft or class of employees,'' can only be read as a ``majority of 
eligible voters'' or that the Board's current procedures are 
compelled by the statute. In Switchmen's Union, the Court addressed 
the standard of review of the NMB's representation determinations 
and held that it was for the Board and not the courts to resolve 
claims involving the appropriate craft or class. In ABNE, the Court 
held that the Board's current ballot form did not exceed its 
statutory authority, but the Court also noted that ``not only does 
the statute fail to spell out the form of any ballot that might be 
used but it does not even require selection by ballot. It leaves the 
details to the broad discretion of the Board with only the caveat 
that it `insure' freedom from carrier interference.'' 380 U.S. at 
668-669.

    Section 2, Fourth of the Railway Labor Act provides: ``The 
majority of any craft or class of employees shall have the right to 
determine who shall be the representative of the craft or class for 
the purposes of this Act (chapter).'' Petitioner construes this 
section as requiring that a representative be selected by the votes 
of a majority of eligible voters. It is to be noted that the words 
of the section confer the right of determination upon a majority of 
those eligible to vote, but it is silent as to the manner in which 
---------------------------------------------------------------------------
that right shall be exercised.

300 U.S. at 560. Citing its decisions in political election cases, the 
Court continues: ``Election laws providing for approval of a proposal 
by a specified majority of an electorate have been generally construed 
as requiring a [sic] only the consent of the specified majority of 
those participating in the election * * * . Those who do not 
participate `are presumed to assent to the expressed will of the 
majority of those voting.' '' Id. (internal citations omitted).
    Delta suggests that the Court in Virginian Railway held that 
majority participation is required by Section 2, Fourth when it noted 
that ``[i]f in addition to participation by a majority of a craft, a 
vote of the majority of those eligible is necessary for a choice, an 
indifferent minority could prevent the resolution of a contest, and 
thwart the purpose of the act, which is dependent for its operation 
upon the selection of representative.'' Id. In support of this 
argument, Delta also cites the Virginian Railway Court's statement that 
``[i]t is significant of the congressional intent that the language of 
section 2, Fourth, was taken from a rule announced by the United States 
Railroad Labor Board, acting under the provisions of the Transportation 
Act of 1920 * * * where it appeared that a majority of the craft 
participated in the election. The Board ruled * * * that a majority of 
the votes cast was sufficient to designate a representative.'' Id. at 
561. Thus, Delta argues that ``majority participation in the election 
was a precondition to certification'' and any other reading of Section 
2, Fourth ``undermines Congress' evident intent to place the authority 
to elect representation (or choose among representatives) to the 
majority of the craft or class, and not to a mere handful of 
individuals.''
    The Board agrees that Virginian Railway involved an election in 
which a majority of eligible employees actually

[[Page 26069]]

participated in the election. The Board, however, is not persuaded that 
the language cited by Delta precludes certification by a majority of 
ballots cast since the Court upheld the use of a presumption that non-
voters concur in the wishes of the majority of voters. Nor have the 
courts interpreted Virginian Railway as Delta does. In National Labor 
Relations Board v. Standard Lime & Stone Co., 149 F.2d 435 (1945), 
cert. denied, 326 U.S. 723 (1945), the NLRB certified a union on the 
basis of a majority of ballots cast in an election in which the 
majority of employees in the bargaining unit did not vote. The employer 
refused to bargain with the union because while the union received a 
majority of the ballots cast, a majority of the bargaining unit 
employees had not voted in the election. The United States Court of 
Appeals for the Fourth Circuit stated,

    On the first and principal question, that presented by lack of 
majority participation in either of the elections, we think that the 
conclusive answer is found in the decision of the Supreme Court in 
[Virginian Railway] * * * . In that case both this court and the 
Supreme Court held that, in employees' elections under the Railway 
Labor Act * * * for the selection of bargaining representatives, the 
political principle of majority rule should be applied, viz., that 
those not participating in the election must be presumed to assent 
to the expressed will of the majority of those voting, so that such 
majority determines a choice.

    Id. at 436 (citations omitted). The Fourth Circuit noted that in 
Virginian Railway, ``a majority of the employees participated in the 
election, but the ground of the decision, the political principle of 
majority rule with the presumption that those not voting assent to the 
expressed will of the majority voting, supports the choice made in an 
election, whether the majority of employees has participated or not.'' 
\12\ Id. at 436 n. 1. Finally, noting that the purpose of allowing 
employees to choose a bargaining representative is to further the 
public interest of preserving industrial peace and prevent interference 
with interstate commerce, the court stated that

    \12\ The Fourth Circuit is not alone in this view of Virginian 
Railway. See also Int'l Bhd. of Teamsters v. Bhd. of Ry., Airline & 
S.S. Clerks, 402 F.2d 196, 204 n. 16 (DC Cir. 1968), cert. denied, 
393 U.S. 848 (1968) (noting that the Virginian Railway Court's 
reliance on analogy to political elections served to support the 
NLRB's power to certify a union even where a majority of the 
bargaining unit did not participate and choice of whether or not to 
follow Virginian Railway presumption was the NMB's to make); ABNE, 
380 U.S. at 670 (1965) (characterizing the ``presumption of 
Virginian Railway'' as ``[i]f in a labor election an employee does 
not vote, he can safely be presumed to have acquiesced in the will 
of the majority of voters'' and acknowledging that the NMB has broad 
discretion to decide whether or not to follow this presumption); 
Continental Airlines v. NMB, 793 F.Supp. 330, 333-34 n. 5 (D. DC 
1991) (finding that no statutory language prescribes how the NMB 
should assess the views of voters in union elections and citing 
Virginian Railway and ABNE for conclusion that in election cases the 
NMB has the discretion to treat a nonvoter as either acquiescing in 
the will of the majority or voting for no representation).

[t]his being true, it would be as absurd to hold that collective 
bargaining is defeated because a majority of employees fail to 
participate in an election of representatives as it would be to hold 
that the people of a municipality are without officers to represent 
them because a majority of the qualified voters do not participate 
in an election held to choose such officers. In the one case, as in 
the other, the representative is being chosen to represent a 
constituency because it is in the public interest that the 
constituency be represented; and all that should be necessary is 
that the election be properly advertised and fairly held and that 
---------------------------------------------------------------------------
the settled principle of majority rule be applied to the result.

149 F.2d at 438-39.

    In its comments, Delta suggests that the Board errs in citing 
precedent involving the National Labor Relations Act (NLRA) and 
discussing the similarity of the language of both statutes.\13\ Delta 
takes pains to remind the NMB that the NLRA ``cannot be imported 
wholesale into the railway labor arena. Even rough analogies must be 
drawn circumspectly with due regard for the many differences between 
the statutory schemes.'' Trans World Airlines v. Indep. Fed'n of Flight 
Attendants, 489 U.S. 426, 439 (1989) (quoting Bhd. of R. R. Trainmen v. 
Jacksonville Terminal Co., 394 U.S. 369, 383 (1969)). The Board 
disagrees with Delta. While there are differences in history and 
purpose between the NLRA and the RLA, the Standard Lime case arose 
under Sec. 9(a) of the NLRA and the language of that section was 
modeled on Section 2, Fourth of the RLA. As previously discussed in the 
NPRM and in the 1947 Opinion of Attorney General Tom C. Clark, 40 Op. 
Att'y Gen. 541 (1947), Section 9(a) of the NLRA provides that 
``[r]epresentatives designated or selected for the purposes of 
collective bargaining by the majority of the employees in a unit 
appropriate for such purposes, shall be the exclusive representatives 
of all the employees in such unit for the purposes of collective 
bargaining * * * .'' 29 U.S.C. 159(a). The legislative history of 
Section 9(a) of the NLRA states that ``the bill is merely an 
amplification and further clarification of the principles enacted into 
law by the Railway Labor Act and by section 7(a) of the National 
Industrial Recovery Act, with the addition of enforcement machinery of 
familiar pattern.'' H. Rep. No. 74-1147, at 3 (1935).\14\
---------------------------------------------------------------------------

    \13\ Delta also argues that the Board cannot rely on precedent 
involving the NLRA because an employer can easily seek court review 
of an NLRB certification while an NMB certification is essentially 
unreviewable. To be sure, judicial review of the Board's decisions 
has often been observed to be ``one of the narrowest known to the 
law.'' Int'l Ass'n of Machinists & Aerospace Workers v. Trans World 
Airlines, 839 F.2d 809, 811, amended 848 F.2d 232 (DC Cir. 1988), 
cert. denied 488 U.S. 820 (1988). This is true, however, because 
Congress intended the Board to have the final word in representation 
disputes. In Switchmen's Union, the Court concluded that this 
limited role for the courts was part of the statutory scheme, noting 
that the Congressional intent ``seems plain--the dispute was to 
reach its last terminal point when the administrative finding was 
made. There was to be no dragging out of the controversy into other 
tribunals of law.'' 320 U.S. at 305; See also ABNE, 380 U.S. 650, 
658-660 (1965). Further, unlike the NLRB, which has broad 
adjudicatory and remedial powers, the NMB's mission is to help the 
parties to a dispute reach resolution through determination of 
representation disputes and mediation of collective-bargaining 
controversies. Finally, limited review does not mean that judicial 
review is nonexistent. The Board's actions are reviewable where the 
NMB has committed a ``gross violation'' of the RLA; where it has 
failed to satisfy its obligations under Section 2, Ninth to 
investigate a dispute; where its actions are outside its delegated 
authority under the Act; or where it has violated a party's 
constitutional rights. Further, judicial review is also available 
for the Board's actions where, as here, it has engaged in rulemaking 
under the APA.
    \14\ See also New York Handkerchief Mfg. Co. v. NLRB, 114 F. 2d 
144, 149 (7th Cir. 1940) (``From a comparison of the language of the 
two Acts, it becomes evident that the Labor board is given precisely 
the same authority under the Labor Act as is the Mediation Board 
under the Railway Labor Act.'') The fact that the NLRB and the NMB 
have interpreted similar statutory language in different ways lends 
support to the NMB's view that the language of Section 2, Fourth is 
ambiguous.
---------------------------------------------------------------------------

    Finally, many commenters opposed to the NPRM also suggest that the 
Board lacks authority for its proposed change in light of a statement 
by then NMB Chairman Robert Harris in the minutes of an executive 
session of the NMB on June 7, 1978. The minutes of that meeting state 
that following a discussion relative to congressional inquiries in 
reference to petitions for change in the ballot used in the NMB's 
representation elections, the following motion by Board Member Harris 
was adopted by unanimous vote:

    In view of the unchanged forty-year history of balloting in 
elections held under the Railway Labor Act, the Board is of the view 
that it does not have the authority to administratively change the 
form of the ballot used in representation disputes. Rather, such a 
change if appropriate should be made by the Congress.

    This statement appears in meeting minutes rather than in a 
published decision. The only context provided by those minutes is that, 
after a ``discussion'' in which Board Members George Ives, David Stowe, 
and Robert Harris expressed their ``opinions,'' a

[[Page 26070]]

motion was adopted. There is no record of the information considered by 
those Board members before they adopted the motion. In short, there is 
nothing to suggest that this ``motion'' was intended as a final 
definitive statement of Agency policy. Assuming, arguendo, that this 
statement was a final, definitive statement of policy, an 
administrative agency, such as the NMB, is free to change a view it 
believes to have been grounded upon a mistaken legal interpretation. 
Good Samaritan Hosp. v. Shalala, 508 U.S. 402, 417 (1993).
    While it places great emphasis on the statement by the 1978 Board, 
Delta suggests that the NPRM's ``heavy'' reliance on a 1947 Opinion of 
Attorney General Tom Clark is misplaced since the opinion ``has no 
legal force.'' The NMB, an independent executive agency, disagrees. 
Congress created the Office of Attorney General in the Judiciary Act of 
1789, assigning that office the duty of giving ``advice and opinion 
upon questions of law when required by the President of the United 
States, or when requested by the heads of any of the departments, 
touching any matters that may concern their departments.'' Judiciary 
Act of 1789, ch. 20, 35, 1 Stat. 73, 93 (1845) (codified as amended in 
28 U.S.C. 511). It is generally understood that the opinions of the 
Attorney General, and, more recently the Office of Legal Counsel, will 
become the controlling view of the executive branch. Randolph D. Moss, 
Executive Branch Legal Interpretation, 52 Admin. L. Rev. 1303, 1318-
1319 (2000). ``Few, however, dispute the proposition that, whether for 
legal reasons, to promote uniformity and stability in executive branch 
legal interpretation or to avoid the personal risk of being `subject to 
the imputation of disregarding the law as officially pronounced,' 
executive branch agencies have treated [these] opinions as conclusive 
and binding [since the early nineteenth century].'' Id. at 1319-1320 
(citations omitted). Accordingly, based on the language of the RLA, its 
legislative history, and legal precedent, the Board believes that the 
proposed change to its election procedures does not exceed its 
statutory authority.

E. Comments Regarding Procedural Deficiencies

    Chairman Dougherty, in her dissent, and most commenters opposed to 
the rule change criticized the procedure used by the Board in 
initiating the rulemaking process, arguing that the Board should have 
followed the procedure it set for itself when considering changing 
election procedures in the past. In 1985, the Board received a petition 
from the Chamber requesting that rules be amended to include 
decertification procedures. That petition was followed by a petition 
from the IBT requesting that the Board consider making additional 
changes to election procedures, including the change proposed in the 
current rulemaking process. Instead of initiating rulemaking at that 
time, the Board chose to consolidate both requests and held a hearing 
to determine whether to propose any of the changes at issue. Several 
commenters have referred to those procedures as the ``Chamber 
procedures'' and argued that the Board is bound to follow those 
procedures. ATA and Air-Con describe the procedures in place in 1985 as 
including ``pre-hearing opening and response briefs, evidentiary 
hearings, and post-hearing briefs.'' ATA and other commenters, citing 
the Board's more recent opinion in Delta Air Lines, Inc., 35 NMB 129 
(2008), suggest that by publishing the NPRM, the Board has deviated 
from its promise that it would not make a change in the election 
procedures without a ``complete and open administrative process.''
    In the Chamber decision cited by these commenters the Board noted 
that it had the discretion to conduct those proceedings in ``any manner 
which it finds to be appropriate.'' Chamber of Commerce, 13 NMB 90, 94 
(1986). The prior Board's choice of procedure in 1985 in no way binds 
the current Board to the ``Chamber procedures.'' Neither does the 2008 
Delta decision, promising an open administrative process. In this 
matter, the Board it has chosen to comply with the requirements of the 
APA in deciding to move ahead with proposing changes through the 
rulemaking process.\15\
---------------------------------------------------------------------------

    \15\ TTD and other commenters in support of the proposed rule 
have suggested that the Board is not required to follow the 
rulemaking procedures in the APA to make such a change to its 
election procedures. Because the Board has complied with the 
requirements of Section 553 of the APA, this preamble will not 
discuss the issue of whether the Board was required to do so.
---------------------------------------------------------------------------

    The Board is free to amend its rules at any time, even in the 
absence of a rulemaking petition, and has in no way precluded itself 
from utilizing the notice-and-comment procedures of the APA. 29 CFR 
1206.8(a). The Board did not receive an official rulemaking petition to 
make these changes in the election procedure. The Board received a 
request from TTD to make changes to its Representation Manual to allow 
for the election procedures described in the NPRM. Concluding that the 
change could not be made by simply amending the Representation Manual, 
the Board decided to engage in informal rulemaking under the APA to 
consider the changes. Under the APA, when an agency decides to initiate 
the informal rulemaking process, it must draft a proposed rule and 
submit it to the notice-and-comment process of Section 553 of the APA. 
5 U.S.C. 553. An agency must give interested parties ``an opportunity 
to participate in the rulemaking through submission of written data, 
views, or arguments with or without opportunity for oral 
presentation.'' Id. Sec.  553(c). The APA does not require hearings or 
oral arguments and does not specify the length of the notice-and-
comment period. Executive Order 12,866 states that ``each agency should 
afford the public a meaningful opportunity to comment on any proposed 
regulation, which in most cases should include a comment period of not 
less than 60 days.'' Exec. Order No. 12,866, 58 FR 51735 (1993). By 
following the requirements of the APA and providing a public meeting 
and a 60-day comment period, the Board believes that it followed a 
process that allowed all interested persons to participate.
    The Supreme Court has long rejected the view that an agency can be 
required to provide procedures greater than those outlined in the APA 
when engaged in rulemaking. See, e.g., Vermont Yankee, 435 U.S. 519 
(holding that agencies are free to grant additional procedural rights, 
such as discovery and evidentiary hearings, but courts cannot impose 
these procedures). According to the Supreme Court, it is a basic 
``tenet'' of administrative law that agencies be free to create their 
own rules of procedure, provided that the minimum requirements of the 
APA are met. Id. at 543.
    In 1985, the Board chose not to follow the APA procedures described 
above because it had not yet decided whether to initiate the rulemaking 
process in response to the Chamber's petition. In defending this 
decision, the Board stated that ``5 U.S.C. 553 refers to the actual 
rule-making process, a process which the Board has not initiated at 
this time, should it ever do so.'' Chamber of Commerce, 13 NMB 90, 93 
(1986). The Board has in no way bound itself to the procedures it chose 
to follow in response to the Chamber's petition in 1985. Upon the 
receipt of a rulemaking petition, the Board has discretion in how to 
proceed. According to the Board's regulations, it shall, upon receiving 
a petition, ``consider the same, and may thereupon either grant or deny 
the petition in whole or in part, conduct an appropriate hearing 
thereon and make other disposition of the petition.''

[[Page 26071]]

29 CFR 1206.8(c). In fact, in 1985, the Chamber itself appealed the 
decision that there be a full evidentiary hearing. As noted in the 
Board's Determination of Appeals in that matter,

    The Chamber had proposed instead that the Board receive written 
submissions and schedule subsequent oral argument, if necessary. The 
Chamber bases its arguments on the premise that `a trial-type 
hearing will * * * degenerate into an extended free-for-all replete 
with protracted procedural quarrels and hours of irrelevant 
testimony.' It is the Chamber's position that an oral hearing is not 
required by the [APA].

Chamber of Commerce, 13 NMB at 91. In 1985, the Board was free to 
respond to the Chamber's petition by entering the rulemaking process 
but it chose not to and announced another procedure. The Board has 
discretion in how it chooses to respond to rulemaking petitions.
    Related comments opposing the NPRM suggest that the Board showed 
bias and predetermination by providing a brief legal justification for 
the election change in the NPRM. According to ATA, ``the NPRM announces 
and defends a particular outcome as opposed to issuing a neutral 
invitation for participation and comment'' as it had done in 1985. The 
Board provided such a justification because it decided to propose a 
rule change following the rulemaking procedures of the APA. An NPRM 
must include the following: ``(1) A statement of the time, place, and 
nature of public rulemaking proceedings; (2) reference to the legal 
authority under which the rule is proposed; and (3) either the terms or 
substance of the proposed rule or a description of the subjects and 
issues involved.'' 5 U.S.C. 553(b). The NPRM published on November 3, 
2009 complied with these requirements. The request for comments in 1985 
was not part of rulemaking proceedings under the APA and did not 
require such explanation. Providing this explanation allowed interested 
parties to respond to the Board's reasoning either through a written 
comment or during the public meeting. Interestingly, other commenters 
opposed to the rule, such as Delta Airlines and Flexjet, argued that 
the NPRM did not provide enough legal justification for the change. 
They argue, for example, that the Board did not adequately describe the 
changed circumstances that justify the proposed rule. Courts have held 
that notice of a proposed rule must ``fairly appraise interested 
persons of the subjects and issues the agency was considering.'' See, 
e.g., United Steelworkers of Am. v. Schuylkill Metals Corp. 828 F.2d 
314, 317 (5th Cir. 1987) (internal citations omitted). The Board 
believes that its NPRM has provided information necessary for the 
parties to understand the agency's rationale and have a fair 
opportunity to respond and that its explanation for the change is not 
evidence of bias or predetermination. As discussed below, the Board 
believes that it has provided a sufficient justification for this rule 
change.
    Other comments questioning the Board's procedure suggest that the 
notice-and-comment process did not provide an opportunity to cross 
examine witnesses and respond to evidence presented at the public 
meeting held on December 7, 2009. According to ATA,

[t]he Board's one-day `meeting' on December 7, 2009 was an 
inadequate substitute for the taking of testimony under oath and the 
cross-examination of witnesses. . . . several persons spoke to 
alleged facts of potential relevance to the issues under 
consideration and even offered what purported to be expert 
testimony. The Board cannot rely on such informal and untested 
factual assertions and satisfy the APA.

As noted above, the APA does not require the sort of trial-like hearing 
that these commenters advocate. Such procedures are only required when 
an agency participates in the formal rulemaking procedures of the APA. 
Formal rulemaking is used when ``rules are required by statute to be 
made on the record after opportunity for agency hearing.'' 5 USC 
553(c). The RLA contains no such provision and the Board is not 
required to engage in formal rulemaking.\16\ In addition, courts have 
determined that due process does not demand evidentiary hearings when 
agencies promulgate rules. See, e.g., Nat'l Advertisers, 627 F.2d 1151. 
The evidentiary requirements in informal rulemaking are no greater than 
those required by Congress in passing legislation. According to the 
court in National Advertisers, ``Congress is under no requirement to 
hold an evidentiary hearing prior to its adoption of legislation, and 
`Congress need not make that requirement when it delegates the task to 
an administrative agency''' 627 F.2d at 1166 (citing Bowles v. 
Willingham, 321 U.S. 503, 519 (1944)).
---------------------------------------------------------------------------

    \16\ Sections 556 and 557 of the APA describe formal rulemaking 
procedures, including a trial-type hearing where parties can submit 
evidence and cross examine witnesses. 5 U.S.C. 556(d). Such formal 
procedures have long been disfavored where not required by statute. 
In Vermont Yankee, the Supreme Court stated that a standard of 
review that would cause agencies to engage in formal rulemaking 
would lead to a loss of ``all the inherent advantages of informal 
rulemaking.'' 435 U.S. at 547.
---------------------------------------------------------------------------

    Although there was no opportunity for cross examination during the 
December 7, 2009 public meeting, interested persons did have the 
opportunity to publicly respond to statements made at that meeting and 
many did so. The transcript of the meeting and all public comments were 
made available to the public via the NMB website within a few days. 
Comments received following the public meeting did address evidence 
presented during that meeting. For example, Delta provided a lengthy 
response to data on voter suppression presented by Dr. Kate 
Bronfenbrenner at the public meeting, arguing that Dr. Bronfenbrenner's 
study was biased and outdated. Delta also responded with its own 
discussion of voter suppression based on data received from the Board. 
The Board has reviewed these comments and their relevance to the 
Board's justification for the change in election procedure is addressed 
elsewhere in this preamble.
    In summary, after considering the issues raised in TTD's letter the 
Board decided to utilize the notice-and-comment procedures of the APA 
to propose changes to its election process. Interested persons were 
given an adequate comment period and access to all meeting testimony 
and comments received. The Board followed an open administrative 
process and the volume and quality of the comments received indicates 
that interested persons had the information they needed to 
appropriately respond.

F. Justification for the Proposed Change

    Several commenters opposed to the NPRM as well as Chairman 
Dougherty in her dissent have suggested that the Board has not provided 
adequate justification for this change in election procedures. These 
commenters argue that because the Board has adhered to the current 
representation rules for decades, it needs a particularly compelling 
justification to change these rules. For example, Flexjet commented 
that ``[t]he Board's NPRM does not provide any persuasive reason for 
changing a rule that has been in place for 75 years.'' Other 
commenters, such as Delta, cited case law for the argument that the 
rule change requires greater justification and must pass stricter legal 
scrutiny because the current rule has been in place for a long time. In 
her dissent to the NPRM, Chairman Dougherty also suggested that the 
Board is subject to greater scrutiny because it is changing a long-
standing policy.
    Commenters discussed the various justifications for the rule change 
outlined in the NPRM and provided additional policy reasons in support 
of and in opposition to the proposed change. Before addressing these 
specific issues, the Board would like to first

[[Page 26072]]

address the standard of review applied by courts in a review of a 
change in agency regulations. While the Board, of course, believes that 
there are compelling reasons to make this change to the representation 
election procedure at this time, it notes that the fact that the 
current procedures have been in place for decades does not compel it to 
provide a greater justification than would be required if it were 
creating representation rules for the first time or greater than those 
relied upon when the current procedures were set in place.
    In its recent decision in Fox, the Supreme Court found that the 
Federal Communications Commission (FCC) did not violate the APA when it 
changed its policy towards isolated uses of expletives in television 
broadcasts by issuing notices of apparent liability to Fox Television 
after a Golden Globes broadcast that included ``fleeting expletives.'' 
129 S.Ct. 1800. The facts of that case are relevant here, because the 
FCC changed a long-standing policy when it decided that the single, 
non-literal use of certain words was actionably indecent under the 
statutory ban on indecent broadcasts. Id. at 1807. Previously, the FCC 
had determined that ``deliberate and repetitive'' use of an expletive 
was required for a finding of indecency. Id. The Court determined that 
the FCC's actions were not arbitrary and capricious under the APA, 
rejecting the Court of Appeals' determination that the FCC was required 
to explain `` `why the original reasons for adopting the [displaced] 
rule or policy are no longer dispositive' as well as `why the new rule 
effectuates the statute as well or better than the old rule.' '' Id. at 
1810 (internal citations omitted).
    Justice Scalia, writing for the plurality in Fox, held that the 
fact that an agency is changing course does not require a court to 
apply a higher standard of review to the agency's actions. An agency 
must, however, provide a reasoned explanation for a rule change. 
Justice Scalia described the appropriate standard as follows:

    [T]he requirement that an agency provide reasoned explanation 
for its action would ordinarily demand that it display awareness 
that it is changing position. An agency may not, for example, depart 
from a prior policy sub silentio or simply disregard rules that are 
still on the books. And of course the agency must show that there 
are good reasons for the new policy. But it need not demonstrate to 
a court's satisfaction that the reasons for the new policy are 
better than the reasons for the old one; it suffices that the new 
policy is permissible under the statute, that there are good reasons 
for it, and that the agency believes it to be better, which the 
conscious change of course adequately indicates. This means that the 
agency need not always provide a more detailed justification than 
what would suffice for a new policy created on a blank slate.

Id. at 1811 (emphasis in original, citations omitted).

    Several commenters and Chairman Dougherty would hold the Board to 
the higher standard of review endorsed by the Second Circuit Court of 
Appeals and explicitly rejected by the Supreme Court in Fox. For 
example, Delta, although citing the Supreme Court's decision in Fox, 
demands that the Board provide ``a cogent explanation for this about 
face'' and an explanation of the changed circumstances that justify a 
change in policy at this time. Delta also cites Motor Vehicle 
Manufacturers Ass'n of United States v. State Farm Mutual Automobile 
Insurance Co., 463 U.S. 29 (1983), for the proposition that the Board 
has not adequately justified this change in policy even though the 
Supreme Court rejected the Second Circuit Court of Appeals' reading of 
State Farm when it said that ``our opinion in State Farm neither held 
nor implied that every agency action representing a policy change must 
be justified by reasons more substantial than those required to adopt a 
policy in the first instance.'' Fox, 129 S.Ct. at 1810.\17\
---------------------------------------------------------------------------

    \17\ The Supreme Court in State Farm set aside the Department of 
Transportation's rescission of a recently-promulgated safety 
standard because the agency ``failed to supply the requisite 
reasoned analysis in this case.'' 463 U.S. at 57 (internal quotation 
omitted).
---------------------------------------------------------------------------

    To return briefly to the facts in the Fox decision, one of the 
primary reasons cited by the FCC for its change in policy toward the 
single use of expletives was what it referred to as the ``first blow 
theory'' that ``[e]ven isolated utterances can be made in `pandering * 
* * vulgar and shocking' manners * * * and can constitute harmful 
`first blows' to children.'' Id. at 1812 (internal citations omitted). 
The Court of Appeals, in its decision that was overturned by the 
Supreme Court, held that the FCC's action was arbitrary and capricious 
under the APA because it did not explain why it changed its view about 
the ``first blow theory'' in the 30 years since it first adopted the 
policy that fleeting expletives were not indecent. Fox Television 
Stations, Inc. v. Fed'l Commc'n Comm'n, 489 F.3d 444, 458 (2d Cir. 
2007), overruled by Fox, 129 S. Ct. 1800. The Second Circuit Court of 
Appeals stated:

For decades broadcasters relied on the FCC's restrained approach to 
indecency regulation and its consistent rejection of arguments that 
isolated expletives were indecent. The agency asserts the same 
interest in protecting children as it asserted thirty years ago, but 
until the Golden Globes decision, it had never banned fleeting 
expletives. While the FCC is free to change its previously settled 
view on this issue, it must provide a reasoned basis for that 
change.

Id. at 461. This view, that an agency must provide a greater 
justification when it's changing course than it does when it acts in 
the first instance, is precisely what the Supreme Court overruled in 
Fox. The FCC did not explain why exposure to fleeting expletives was 
more damaging to children today than it was thirty years ago, but it 
was not required to do so in order to make the policy change that it 
did.
    The Fox opinion has been cited by courts in subsequent reviews of 
agency decisionmaking. See, e.g., Handley v. Chapman, 587 F.3d 273, 282 
(5th Cir. 2009) (``[A]n agency effecting a policy change is not 
required to show a more convincing rationale for the new policy than 
for the old.''); Westar Energy, Inc. v. Fed Energy Regulatory Comm'n, 
568 F.3d 985, 989 (DC Cir. 2009) (holding that the agency provided an 
adequate justification for its policy and the fact that it was a change 
in policy ``required no additional or special explanation.''). Judicial 
review of an agency's change in policy includes a consideration of 
whether the agency recognizes that it is changing policy (as opposed to 
simply ignoring current policy), has statutory authority for such 
change, has a good reason for the change, and believes that the new 
policy is better than the previous policy.
    A discussion of the Board's statutory authority to make this change 
is in Section III.D. The Board believes that this change will more 
accurately measure employee choice in representation elections. The 
current election procedures do not allow employees to vote ``no'' or to 
cast a ballot against representation.\18\ In addition,

[[Page 26073]]

any voter who abstains from voting, for any reason, is counted by the 
Board as a vote against representation.
---------------------------------------------------------------------------

    \18\ In its comment, Littler suggests that the Supreme Court in 
ABNE, 380 U.S. at 669 n.5, observed ``that the Board's current 
election procedures `might well be more effective' at determining 
the representational desires of the majority of the craft or class'' 
than the procedure proposed by the NPRM. This overstates the Supreme 
Court's view of the Board's current election procedures. ABNE 
involved a challenge to the form of the Board's ballot, namely the 
failure of the ballot to provide employees with the option to vote 
against representation. The Court recognized that the RLA left the 
details of the ballot to the ``broad discretion'' of the Board, 380 
U.S. at 668-669, and that the Board's decision on this matter was 
not subject to judicial review without a showing that the Board 
exceeded its statutory authority. Id. at 669. In the footnote cited 
by Littler, after noting that the legislative history of the Act 
supports the view that employees have the right to representation, 
the Court stated that ``[u]sing the Board's ballot an employee may 
refrain from joining a union and refuse to bargain collectively. All 
he need do is not vote and this is considered a vote against 
representation under the Board's practice of requiring that a 
majority of the eligible voters in a craft or class actually vote 
for some representative before the election is valid. The 
practicalities of voting--the fact that many who favor some 
representation will not vote--are in favor of the employee who wants 
`no union.' Indeed, the method proposed by the Board might well be 
more effective than providing a `no union' box, since, if one were 
added, a failure to vote would then be taken as a vote approving the 
choice of the majority of those voting. This is the practice of the 
National Labor Relations Board.''
    Id. at 669 n.5. The Court then concluded that ``[w]e venture no 
opinion as to whether the Board's proposed ballot will best 
effectuate the purposes of the Act. We do say that there is nothing 
to suggest that in framing it the Board has exceeded its statutory 
authority.'' Id. at 671.
---------------------------------------------------------------------------

    The Board is not persuaded by commenters who suggest that everyone 
who does not vote in an NMB election is opposed to representation. The 
NLRC asserted that there is no evidence to suggest that employees 
abstain from voting in NMB elections for any reason other than to 
maintain the status quo of no representation. In fact, in 
representation elections where individuals do have the ability to 
explicitly vote against representation, such as in NLRB-sponsored 
elections or Laker ballot NMB re-run elections,\19\ some individuals do 
not cast ballots. In support of the NPRM, IBT provided evidence that 
there is a 12 percent nonparticipation rate in Laker ballot elections 
and an even higher nonparticipation rate in NLRB-sponsored elections. 
In those elections, individuals have a clear method of making their 
support for the status quo of no representation known and yet some 
individuals choose to not do so. It cannot be assumed that those who do 
not participate are uniformly opposed to representation. Although many 
individuals who do not participate in NMB elections may be opposed to 
representation, providing a clear method of registering that choice 
would provide the Board with a more accurate measure of employee 
sentiment.
---------------------------------------------------------------------------

    \19\ A Laker ballot is a ``yes'' or ``no'' ballot with no write-
in option. It is sometimes administered by the Board after a finding 
of election interference. See Laker Airways, Ltd., 8 NMB 236 (1981). 
Laker ballots will be discussed further below.
---------------------------------------------------------------------------

    There are many reasons why individuals chose not to vote in any 
election. Commenters discussed some of these reasons. Americans for 
Democratic Action cites several reasons individuals do not vote in 
political elections, such as travel, illness, or apathy. The political 
scientists expressed concerns that nonvoters' preferences are not 
accurately measured by treating them as ``no'' votes, stating that 
``[t]here is absolutely no reason to presume non-voters wish to cast a 
negative vote.'' Reasons for failing to cast a vote include 
indifference, neutrality, a belief that their vote will not be counted 
for some reason, or pressure to not vote. A comment in favor of the 
proposed rule from a number of United States House Representatives 
notes that the current rule ``is all the more flawed in a setting where 
voter rolls include significant numbers of furloughed employees who are 
not in communication with other voters.'' \20\ According to some 
commenters, voters should have the right to be neutral or indifferent 
about a representation election. Congressman Jerry F. Costello comments 
that it is unfair to assign a ``no'' where no vote has been cast. A 
comment in support of the NPRM submitted by 39 United States Senators 
states that ``[e]mployees must have a choice to vote for union 
representation, against union representation, or not to vote at all.'' 
\21\
---------------------------------------------------------------------------

    \20\ On December 7, 2009, Representatives James L. Oberstar, 
George Miller, John Dingell, John Conyers Jr., David Obey, Fortney 
``Pete'' Stark, Henry Waxman, Edward J. Markey, Norman Dicks, Dale 
Kildee, Nick Rahall, Ike Skelton, Barney Frank, Howard Berman, Rick 
Boucher, Marcy Kaptur, Sander Levin, Solomon Ortiz, Gary Ackerman, 
Paul Kanjorski, Peter Visclosky, Peter DeFazio, John Lewis, Jerry 
Costello, Frank Pallone Jr., Eliot Engel, Nita Lowey, Donald Payne, 
Jose Serrano, Neil Abercrombie, David Price, Rosa DeLauro, James 
Moran, Collin Peterson, Eleanor Holmes Norton, Ed Pastor, Jerrold 
Nadler, Xavier Becerra, Sanford Bishop Jr., Corrine Brown, James 
Clyburn, Bob Filner, Raymond ''Gene'' Green, Luis Gutierrez, Maurice 
Hinchney, Tim Holden, Eddie Bernice Johnson, Carolyn Maloney, 
Lucille Roybal-Allard, Bobby Rush, Robert ``Bobby'' Scott, Bart 
Stupak, Nydia Velaquez, Melvin Watt, Lynn Woolsey, Bennie Thompson, 
Sam Farr, Lloyd Doggett, Michael Doyle, Sheila Jackson-Lee, Patrick 
Kennedy, Zoe Lofgren, Jesse Jackson Jr., Elijah Cummings, Earl 
Blumenauer, Jane Harman, Marion Berry, Leonard Boswell, Danny Davis, 
William Delahunt, Carolyn Kilpatrick, Dennis Kucinich, Carolyn 
McCarthy, James McGovern, Bill Pascrell Jr., Steve Rothman, Loretta 
Sanchez, Brad Sherman, Adam Smith, John Tierney, Robert Wexler, Lois 
Capps, Barbara Lee, Robert Brady, Brian Baird, Tammy Baldwin, 
Shelley Berkley, Michael Capuano, Joseph Crowley, Charles Gonzalez, 
Rush Holt, Dennis Moore, Grace Napolitano, Janice Schakowsky, David 
Wu, Joe Baca, Susan Davis, Mike Honda, Steve Israel, James Langevin, 
Rick Larsen, Betty McCollum, Adam Schiff, Diana Watson, Stephen 
Lynch, Timothy Bishop, Dennis Cardoza, Raul Grijalva, Kendrick Meek, 
Michael Michaud, Brad Miller, Tim Ryan, Linda Sanchez, David Scott, 
Chris Van Hollen, Stephanie Herseth Sandlin, Russ Carnahan, Jim 
Costa, Al Green, Brian Higgins, Daniel Lipinski, Gwen Moore, Doris 
Matsui, Albio Sires, Jason Altmire, Michael Arcuri, Bruce Braley, 
Christopher P. Carney, Kathy Castor, Yvette D. Clarke, Steve Cohen, 
Joe Courtney, Keith Ellison, John J. Hall, Phil Hare, Mazie K. 
Hirono, Paul Hodes, Henry ``Hank'' Johnson, David Loebsack, 
Christopher Murphy, Patrick Murphy, Joe Sestak, Zachary Space, Betty 
Sutton, Timothy Walz, John A. Yarmuth, Laura Richardson, Niki 
Tsongas, Andre Carson, Donna F. Edwards, Marcia L. Fudge, John 
Boccieri, Gerald E. Connolly, Alan Grayson, Deborah ``Debbie'' 
Halvorson, Mary Jo Kilroy, Larry Kissell, Eric J.J. Massa, Gary C. 
Peters, Chellie Pingree, Mark H. Schauer, Harry Teague, Dina Titus, 
Paul Tonko, Mike Quigley, Judy Chu, John Garamendi, Louise 
Slaughter, Tom S. P. Perriello, John Sarbanes, Edolphus Towns, 
Maxine Waters, Madeleine Bordallo, Wm. Lacy Clay, Steve Driehaus, 
and Eni F. H. Faleomavaega submitted a comment in support of the 
proposed rule.
    \21\ On December 7, 2009, Senators Tom Harkin, Barbara A. 
Mikulski, Jack Reed, Sherrod Brown, Jeff Merkley, Christopher J. 
Dodd, Patty Murray, Bernard Sanders, Robert P. Casey Jr., Al 
Franken, Robert C. Bryd, Carl Levin, John F. Kerry, Barbara Boxer, 
Ron Wyden, Tim Johnson, Debbie Stabenow, Frank R. Lautenberg, 
Benjamin L. Cardin, Patrick J. Leahy, Arlen Specter, Daniel K. 
Akaka, Russell D. Feingold, Richard Durbin, Charles E. Schumer, 
Maria Cantwell, Robert Menendez, Amy Klobuchar, Sheldon Whitehouse, 
Jeanne Shaheen, Roland W. Burris, Paul G. Kirk, Claire McCaskill, 
John D. Rockefeller IV, Tom Udall, Edward E. Kaufman, Kirsten E. 
Gillibrand, Jon Tester, and Daniel Inouye submitted a comment in 
favor of the proposed rule.
---------------------------------------------------------------------------

    In his comment, Professor Jamin Raskin notes that some individuals 
are bound by religious principle to refrain from voting in any type of 
election. At the Open Meeting, Reginald ``Willy'' Robinson, a member of 
the IBT, spoke about his personal knowledge of many individuals who do 
not participate in representation elections due to religious beliefs. 
As noted by Professor Raskin, these individuals have the right to 
refrain from the duties of full union membership due to religious 
objections yet when they choose to refrain from taking a position in a 
representation election, the current procedure treats their 
nonparticipation as a ``no'' vote, taking the choice away from 
employees who are willing and able to take on the duties of 
representation. Several commenters suggest that ignoring these factors 
and attributing a ``no'' vote to everyone who does not participate in 
an election creates an unfair bias against representation. The 
Association of Professional Flight Attendants (APFA) states that 
``individuals should be able to abstain without skewing the election 
results.''
    The Board agrees with those commenters who argue that this proposed 
rule will allow the Board to determine each individual's true intent 
with regard to representation. Under Section 2, Ninth of the RLA, the 
Board is required to investigate representation disputes and designate 
the employees' choice of representative. This change will allow the 
Board to more accurately determine the employees' true choice. The 
Board will no longer impose a position on those who abstain from 
participating in a representation election by treating nonparticipation 
as a vote against representation. Employees who are opposed to 
representation will have the opportunity to vote according to that 
view. Employees who have no opinion about a representation dispute or 
wish to abstain from voting for any

[[Page 26074]]

reason will no longer be counted as a vote against representation.
    Although the Board is aware that under Fox it is not required to 
provide an explanation as to ``why the original reasons for adopting 
the [displaced] rule or policy are no longer dispositive,'' 129 S.Ct. 
at 1810, it notes that there is little evidence that there were strong 
policy reasons for the prior Board's adoption of the current 
representation rules. As Justice Kennedy noted in his concurring 
opinion in Fox, the amount of explanation required when an agency 
changes policy may depend on whether the previous policy was based on 
factual or scientific findings and the reliance interests of the 
public. Id. at 1822-23 (Kennedy, J., concurring). Justice Scalia, in 
his plurality opinion, also stated that, although justification is not 
``demanded by the mere fact of policy change,'' a greater justification 
can be necessary when a change disregards ``facts and circumstances 
that underlay * * * the prior policy.'' Id. at 1811. That is not the 
case here. As noted in the NPRM, the 1934 Board initially adopted the 
current representation election rules based ``on what seemed to the 
Board best from an administration point of view,'' and did not 
articulate a rationale for the current rule. 1 NMB Ann. Rep. 19 (1935).
    Further, there is evidence that the current procedures were adopted 
in response to an era of widespread company unionism within railroads, 
a factor that has ceased to be an issue in the railroad industry. As 
described by one court:

    [T]he company union had the following attributes: employees of 
the railroad were permitted to spend considerable time on union 
affairs without deduction by the company from their pay; the company 
would pay expenses incurred by union members or supporters in 
recruiting new members; the company would expect and receive reports 
from the union supporters concerning recruitment efforts; and the 
company would discharge or discriminate against supporters of rival 
unions.

Aircraft Mechanics Fraternal Ass'n v. United Airlines, Inc., 406 
F.Supp. 492, 497 (N.D. Cal. 1976). Company unions became common 
following the passage of the Transportation Act of 1920, the 
predecessor to the RLA that included no prohibitions against employers 
interfering in the selection of employee representatives and relied on 
voluntary collective bargaining. Frank N. Wilner, Understanding the 
Railway Labor Act 50-51 (2009). By the time the RLA was passed in 1926, 
``carriers had `broken the backs' of many unions by the device of 
company unions on individual's properties.'' Hearing Before the 
Subcomm. of the S. Comm. On Labor and Public Welfare, 81st Cong. 12 
(1950) (testimony of George Harrison, Int'l VP, Transportation Workers 
of America). The RLA failed to restore power to independent unions and 
when the 1934 amendments to the RLA were passed, there were over 700 
agreements between carriers and company unions, representing 20 percent 
of the total number in the industry. Id. at 13.
    The Board was given its statutory mandate to investigate 
representation disputes in part because of these company unions, which 
the 1934 amendments also outlawed. ``It was this carrier influence over 
self-organization, as it has been exercised over the years, that was 
the principal target of the 1934 amendments.'' Id. After the 1934 
amendments gave the Board authority to certify representatives, the 
Board likely concluded that requiring a majority of eligible voters to 
vote in favor of representation by an independent union would more 
effectively demonstrate employee intent to those carriers who had just 
previously refused to voluntarily recognize these independent unions. 
Employers could not claim that the independent unions did not have the 
support of employees when the Board required an absolute majority of 
votes in favor of representation in order to certify. When carriers 
agreed to be bound by a majority of votes cast, the Board would certify 
on that basis rather than on the basis of a majority of eligible 
voters. In its First Annual Report the Board stated that ``[w]here, 
however, the parties to a dispute agreed among themselves that they 
would be bound by a majority of the votes cast, the Board took that 
position that it would certify on that basis.'' 1 NMB Ann. Rep. 19 
(1935).
    During this period, almost all railway workers were represented by 
either an independent union or a company union. Because almost all 
employees were already organized and most elections involved disputes 
between unions, the NMB's early election ballots provided a choice 
among representatives without the option to vote against 
representation. The high degree of organization in the railroad 
industry at that time led to the assumption that all class or crafts 
would be organized and for this reason, there was likely no 
consideration given to the possibility that employees would vote 
against representation. These factors no longer exist today. The 
majority of NMB elections list only one employee representative. 
Providing employees with the option to vote against representation was 
likely not a pressing concern to the Board during an era when most 
employees were already represented. There is no longer the assumption 
in either the railroad or airline industries that all class or crafts 
will be organized, yet there remains no way for employees to vote 
against representation.
    Although the problem of company unions and the high degree of 
representation in the railroad industry likely led to the current 
representation procedure, there is little concrete evidence of the 1934 
Board's process for adopting that procedure. As stated in the Board's 
First Annual Report, the current procedures developed for 
administrative reasons during a time when most employees covered by the 
Act were already members of some type of union. Another indication that 
the current procedure was merely the result of circumstances as they 
existed in the 1930s was the fact noted above that the early Board did 
not utilize this procedure exclusively. When the parties agreed, the 
Board would certify based on the majority of votes cast, indicating 
that the earlier Boards did not believe that certifying based on the 
majority of eligible voters was necessary for it to fulfill its 
statutory obligations. Early Boards recognized that they had the 
discretion to utilize either procedure in representation elections.
    Many commenters provided additional arguments for and against the 
NPRM. Commenters in favor of the rule change argue that there have been 
additional changed circumstances since the current rules were first put 
into place. The APFA noted that increased technology and communication 
allows all employees to be adequately informed about the election 
process and there is no longer the risk that ``an informed minority 
will overwhelm an oblivious majority,'' a risk that might have existed 
in prior decades due to lack of communication among nationwide class or 
crafts. Further expanding on the changes in technology, along with a 
more educated workforce, Frank N. Wilner included the following 
analysis in his comments in favor of the rule change:

    During the 1930s, there was a communications challenge--in 
employee reading comprehension as well as the ability to communicate 
by electronic means (including telephone) * * * By requiring that a 
majority of eligible employees vote in favor of representation, the 
procedure better assured that the majority would be aware of the 
election and for what they were voting.

The Board notes that these changes in technology, along with its own 
recent changes in election procedures, make it unlikely that a majority 
of employees in a craft or class will be inadequately informed about 
either organizing efforts

[[Page 26075]]

or how to vote for their preference in an election.\22\
---------------------------------------------------------------------------

    \22\ Commenter Watco Companies, Inc. and Genesee & Wyoming, Inc. 
(Watco) suggests that the Board adopt a quorum requirement in 
representation elections. In their view, the Board should require a 
certain level of participation in any election before certifying a 
bargaining representative on the basis of a majority ballots cast. 
As discussed in section III.D., Congress has not mandated any such 
requirement for elections under the RLA and the Board has the 
discretion to conduct elections based on a majority of votes cast 
despite the fact that less than a majority of eligible employees 
choose to participate in the election. Further, as discussed in 
Section III.D., the presumption of Virginian Railway is that if ``an 
employee does not vote, he can safely be presumed to have acquiesced 
in the will of the majority of voters.'' ABNE, 380 U.S. 650, 670 
(1965). There is also no evidence that there will be ``de minimus'' 
participation in NMB elections following the rule change as 
suggested by Watco. If, however, the Board was presented with a 
situation in which the Board itself believed or a participant 
contended that the election was unrepresentative because eligible 
employees were denied or prevented from exercising their right to 
vote, the Board would investigate and impose an appropriate remedy.
---------------------------------------------------------------------------

    IAM argues that changes in technology have provided employers with 
increased methods of intimidating employees and preventing them from 
voting in favor of representation. The Communication Workers of America 
(CWA) argue that rather than encouraging all employees to vote their 
preference, the current rule encourages employers to take actions that 
undermine the election process. According to CWA, these actions include 
inflating the lists of eligible voters and intimidating prospective 
voters. Comments and public meeting testimony from CWA, Dr. Kate 
Bronfenbrenner, the ALPA, and others included discussions of employer 
intimidation techniques and tactics.
    Commenters opposed to the NPRM, including Delta, argue that issues 
related to carrier conduct raised in the public meeting and in comments 
submitted by unions are irrelevant because carriers have the right to 
encourage employees to not participate in an election. These commenters 
also point out that the Board has expertise in determining whether 
there has been election interference and providing appropriate remedies 
in those situations.
    Several commenters note that the current representation procedures 
have not been an obstacle to union organizing and the proposed change 
is, therefore, unnecessary. The American Short Line and Regional 
Railroad Association commented that over 65 percent of non-management 
employees in short line and regional railroads have union 
representation. Delta and Littler pointed out that unions enjoy greater 
success under NMB elections than under the voting procedure used by the 
NLRB. Since 1935, unions have achieved certification in 68 percent of 
NMB elections but in only 58 percent of NLRB-sponsored elections. Delta 
further noted that in 2009, certification was the outcome of 73 percent 
of NMB elections.
    In contrast to the commenters opposed to the rule change, many in 
favor of the change argue that unions have become less successful in 
winning representation elections in recent years. IAM notes that NMB 
elections resulted in certification in the vast majority of instances 
during the early years of the RLA. For example, in 1935, 94 percent of 
elections resulted in certification while this is no longer the case.
    The Board is aware that these issues, union success and carrier 
interference in representation elections, are ones that many of the 
commenters feel very strongly about. The decision to change the current 
representation procedures and publish the NPRM, however, was not based 
on these factors. The Board cannot speculate as to the effect of this 
change in either of these areas. Regarding election interference, the 
Board has always investigated allegations and provided appropriate 
remedies when it has found that a carrier engaged in election 
interference. It is the Board's statutory duty to investigate 
representation disputes and ensure that elections are free from carrier 
interference. Nothing in the NPRM alters the Board's commitment to its 
duty under the RLA. The Board has not taken the position that current 
procedures need to change because carriers have been engaging in higher 
levels of voter suppression or election interference. In fact, 
commenters such as Delta are correct when they note that some of the 
testimony regarding voter suppression inaccurately portrayed some 
carrier conduct that the Board has in the past determined is not 
election interference. The Board has repeatedly stated that accurately 
portraying the way an employee can vote no is not interference. Delta 
Airlines. Inc, 30 NMB 102 (2002); Express Airlines I, 28 NMB 431 
(2001); Delta Air Lines, Inc., 27 NMB 484 (2000); American Airlines, 26 
NMB 412 (1999).
    Likewise, the Board has not proposed this change to increase the 
rate of union success in representation elections. The Board is of the 
opinion that there is no way to determine the exact effect that this 
change will have on union organizing efforts; however, the Board 
believes that this change will allow it to more accurately determine 
employee sentiment in representation elections. Any predictions about 
whether unions will be more successful under the procedures outlined in 
that NPRM are mere speculation, as demonstrated by the conflicting 
viewpoints presented by the commenters about union success rates. Many 
factors beyond the control of the Board affect whether a union will be 
successful in an election, including the economy, the culture among 
employees in the craft or class, resources utilized by unions and 
carriers during the election process, and the reputation of the union. 
While commenters opposed to this rule are correct that those who are 
opposed to union representation do not need the option of voting ``no'' 
because they can currently ``vote'' against representation by choosing 
not to cast a ballot, this method does not provide a measure of those 
employees who do not wish to vote either for or against representation 
or those who fail to vote for any other reason. The Board continues to 
believe that assigning a ``no'' vote to everyone who does not 
participate in an election does not provide the most accurate measure 
of those employees' views about representation.
    Despite the contention by commenters such as Delta that the Board 
is bound by its prior declaration that this change is unnecessary, the 
Board believes that the proposed change is essential to fulfilling its 
statutory mission to ascertain employee preference with regard to 
representation. Delta cites the Board's statement in 1987 that it would 
only make such a change if mandated by the RLA or if doing so was 
``essential to the Board's administration of representation matters.'' 
Chamber of Commerce, 14 NMB at 360. The Board does believe this change 
is essential but also notes that it is not bound by its prior 
statements on this issue and is free to consider changed circumstances, 
such as those discussed above, in determining whether to change 
representation procedures, despite refusing to do so in the past. 
According to the Supreme Court, `[r]egulatory agencies do not establish 
rules of conduct to last forever; they are supposed, within the limits 
of the law and of fair and prudent administration, to adapt their rules 
and practices to the Nation's needs in a volatile, changing economy.'' 
American Trucking Ass'n v. A.T. & S.F. R. Co., 387 U.S. 397, 416 
(1967). Agencies are free to reconsider past interpretations and 
overturn past rulings. Id. As stated by the court in National 
Advertisers, ``a `[c]ommission's view of what is best in the public 
interest may change from time to time. Commissions themselves change, 
underlying philosophies differ, and

[[Page 26076]]

experience often dictates changes.' '' 627 F.2d at 1174. (citing 
Pinellas Broadcasting Co. v. Fed. Commc'n Comm'n, 230 F.2d 204, 206 
(DCCir. 1956)). Despite the arguments of many commenters opposed to the 
NPRM, the Board is not bound by the statements or policy views 
expressed by the Board in the past.
    The proposed change will ensure that all employees in a class or 
craft have the opportunity to register their support for or opposition 
to a union, as well as allow individuals the right to abstain from 
participating without that choice being treated as a compulsory vote 
against representation. The Board is statutorily mandated to 
investigate disputes over representatives and to utilize an 
``appropriate method of ascertaining'' the authorized representative of 
the employees. According to the Supreme Court, it is ``the duty of the 
Mediation Board, when any dispute arises among the carrier's employees, 
`as to who are the representatives of such employees,' to investigate 
the dispute and to certify, as was done in this case, the name of the 
organization authorized to represent the employees.'' Virginian Ry., 
300 U.S. at 544. This proposed change will allow the Board to more 
accurately ascertain employee desires regarding representation.

G. Effect of the Proposed Change on Stability in Labor Relations

    Several comments and Chairman Dougherty's dissent express concern 
that the rule change could destabilize labor relations in the 
industries covered by the RLA. These comments address two types of 
stability in the industries. First, the comments address stability as 
measured by incidents of strikes, lockouts, or other work stoppages. 
Second, comments addressed concerns about continuity of representation 
among the classes and crafts represented by unions. They raise concerns 
that the proposed changes will lead to union raiding, more frequent 
elections, and increased changes in representation.
    ASC, in its comment in opposition to the rule change, argues that 
the ``proposed change will lead to certification of minority 
representatives. This will foster instability in contract negotiations 
and may adversely affect the stability of carrier operations resulting 
in a potential increase in interruptions to commerce.'' According to 
Littler, the current rule ``quells any doubt about the authority of the 
selected representative.'' Littler argues that carriers who are aware 
that the majority of the craft or class supports the representative are 
more likely to understand the need to work cooperatively with the 
employee representative.
    Commenters also voice concern that the proposed rule will lead to 
an increase in raiding and inter-union conflicts. They argue that 
changes in representation may become commonplace if the proposed rule 
is instituted and unions will be ``constantly concerned'' about rival 
unions. NRLC argues that the certification of representatives with 
broad support among employees results in long-term and stable 
relationships between carriers and unions. TTX Company, a freight rail 
services company, argues that the current rule contributes to stability 
and that union raiding and decertification efforts occur rarely. 
According to TTX, unions currently do not need to worry about potential 
challengers to their status as representatives and this could change 
with the proposed rule. These commenters expressed concern that the 
rule change could be, as stated by NRLC, an ``invitation to rival 
unions'' to file representation petitions and seek to replace current 
representatives.
    Commenters who support the rule change argue that representation 
procedures are not the source of stability within labor relations in 
the railroad and airline industries. IAM noted that the Board has on 
many occasions certified unions who do not receive a majority of votes 
cast in an election. This occurs when there are two unions seeking to 
represent a craft or class. If a majority of all eligible employees 
vote for representation, the Board certifies the union receiving more 
votes. In its First Annual Report the Board stated that it would 
sometimes certify unions based on majority of votes cast. 1 NMB Ann. 
Rep. 19 (1935). The Board has on many occasions held Laker ballot 
elections, where certification is based on the majority of votes cast. 
The Board has on occasion held Key Ballot elections, resulting in 
certification unless the majority of votes cast are opposed to 
representation. There is no evidence that any of these measures have 
led to instability in the airline or railroad industries.
    In its comment in support of the rule change, the Transportation 
Communications International Union (TCU) noted that unions do not rely 
on the results of representation elections to determine whether 
employees support a strike. Employee support of a union will vary over 
time. Additionally, TCU argues that the idea that less union support 
will lead to more strikes is counterintuitive. A union that is not 
supported by its members will be unlikely to convince them to support a 
strike, while a union that enjoys a great amount of support is more 
likely to gain authorization for a strike from its members. IAM cites 
its own requirement that two-thirds of its voting membership authorize 
a strike. A union will only strike when it has the strong support of 
its members.
    The Board notes that no concrete evidence has been presented in 
support of the argument that the proposed rule change will lead to 
instability in the form of increased strikes or work stoppages in the 
industries. The specific procedure at issue in the NPRM is not linked 
to the stability cited by the commenters. Although many commenters 
cited the Board's own statements regarding stability, the Board did not 
provide any evidence for its assertion that this change in election 
procedures would lead to instability when confronted with the issue in 
1987.
    Chamber of Commerce, 14 NMB 347, 362 (1987). Aside from the 
possibility that the current procedure was instituted in response to 
the problem of company unions, which themselves caused strife in labor 
relations, there is little or no evidence that the current procedures 
were instituted to prevent strikes or work stoppages. Like many other 
arguments presented in opposition to this proposed rule, the argument 
that it will lead to labor instability is based on mere 
speculation.\23\
---------------------------------------------------------------------------

    \23\ In her dissent, Chairman Dougherty criticizes the Board for 
dismissing some concerns about instability as mere speculation. In 
fact, some of the concerns raised by commenters and by our 
dissenting colleague are based on speculation born from the unproven 
assumption that there will be little participation in representation 
elections. We have no reason to believe that this rule change will 
lead to the parade of horribles, such as unlawful work stoppages, 
envisioned by these commenters. None of the comments, nor the 
dissent, point to any examples of this type of action occurring and 
it would be imprudent for the Board to make policy determinations 
based on speculation.
---------------------------------------------------------------------------

    Stability, defined as a lack of disruptions caused by strikes and 
work stoppages, has been attributed to the existence of collective 
bargaining agreements and the mediation processes outlined in the 
Railway Labor Act. In its First Annual Report, the Board itself 
attributed the absence of strikes during the prior two years to the 
mediation procedures in the Act and by the existence of collective 
bargaining agreements. 1 NMB Ann. Rep. 36 (1935) (``The extent to which 
labor relations are governed by such agreements is the measure of the 
extent to which law, democratically made by employees as well as 
employers, has been substituted for the rule of economic force and 
warfare in the railroad industry''). In

[[Page 26077]]

Detroit & Toledo Shoreline Railroad v. United Transportation Union, 396 
U.S. 142, 149 (1969), the Supreme Court described the Board's 
bargaining process as ``almost interminable'' but considered this a 
positive description of a process that prevented disruptions in 
---------------------------------------------------------------------------
commerce. The Court said that

    The Act's status quo requirement is central to its design. Its 
immediate effect is to prevent the union from striking and 
management from doing anything that would justify a strike. In the 
long run, delaying the time when the parties can resort to self-help 
provides time for tempers to cool, helps create an atmosphere in 
which rational bargaining can occur, and permits the forces of 
public opinion to be mobilized in favor of a settlement without a 
strike or lockout. Moreover, since disputes usually arise when one 
party wants to change the status quo without undue delay, the power 
which the Act gives the other party to preserve the status quo for a 
prolonged period will frequently make it worth-while for the moving 
party to compromise with the interests of the other side and thus 
reach agreement without interruption to commerce.

Id. at 150.

    Even prior to the 1934 amendments giving the Board the authority to 
certify representatives, the RLA was known for its conciliation 
process. According to a 1926 New York Times editorial, ``[a]s a last 
resort a strike is possible; but it can come only after every other 
resource, including long delay, has been exhausted.'' Railway Labor and 
the Public, N.Y. Times, March 17, 1926 (as cited in Frank N. Wilner, 
Understanding the Railway Labor Act 55 (2009)). A 1936 Harvard Law 
Review article did not list the Board's representation procedures as 
one of the several factors leading to stable labor relations:

    This Act assumes that the basis for stable, amicable labor 
relations is the periodic negotiation of collective agreements 
between carriers and strong, independent unions representing the 
employees. It is made unlawful for a carrier to interfere in any way 
with the organization of its employees, as by promoting and 
financing company unions, by influencing or coercing employees to 
join or not to join any labor organization; and, specifically 
carriers are forbidden to require any person seeking employment to 
sign an agreement promising to join or not to join a labor 
organization.

Calvert Magruder, A Half Century of Legal Influence upon the 
Development of Collective Bargaining, 50 Harv. L. Rev. 1071, 1087 
(1936). These discussions of stability in railway labor relations make 
no mention of the Board's representation procedures or definition of 
majority under the Act. Stability in the industries has been attributed 
over the years to the Act's mediation process, the existence of 
collective bargaining agreements, and the restriction on carrier 
interference in representation matters. The proposed rule would not 
change any of these factors.\24\
---------------------------------------------------------------------------

    \24\ In regards to comments about whether it will be more 
difficult for unions to ratify tentative agreements under the 
proposed rule, the Board notes that contract ratification is an 
internal union matter. Whatever a union's internal procedure is for 
ratifying a tentative agreement, this process generally occurs 
months or years after certification. A union's support among its 
members is constantly in flux. Even under the current election 
procedure, a union that is certified with the support of a majority 
of the class or craft could find itself unable to convince its 
membership to support a tentative agreement. Additionally, 
difficulty in ratifying rarely leads to a work stoppage. The Board's 
mediation procedures, including the maintenance of the status quo, 
the cooling-off period, and the possibility of a Presidential 
Emergency Board, will remain the same, ensuring the NMB will 
continue to assist the parties in reaching agreements and avoid 
disruptions in air or rail transportation.
---------------------------------------------------------------------------

    The Board notes that extraneous factors beyond its control have 
also apparently had an impact on the number of strikes or work 
disruptions. The number of strikes has decreased in recent years, with 
no change in the representation process in NMB elections. Union 
commenters attribute this decrease at least in part to the Supreme 
Court's decision in Trans World Airlines v. Independent Ass'n of Flight 
Attendants, 489 U.S. 426 (1989), permitting carriers to hire permanent 
replacements for striking workers. This also indicates that the current 
representation election procedures are not a contributing factor to the 
incidents of work stoppages in the railroad and airline industries.
    The argument that carriers have better working relationships with 
unions that have greater support among employees overlooks the fact 
that carriers are required by law to treat with Board-certified 
representatives of employees. This duty is found in Section 2, Ninth of 
the RLA, which states that ``Upon receipt of such certification the 
carrier shall treat with the representative so certified as the 
representative of the craft or class for the purposes of this 
chapter.'' The Supreme Court has reiterated this obligation, affirming 
that carriers have the obligation to bargain exclusively with the 
certified representative and this obligation is mandatory and 
enforceable in the courts. Virginian Ry., 300 U.S. at 544-45. The 
Supreme Court has also stated that the Act requires that carriers 
``meet and confer with the authorized representative of its employees, 
to listen to their complaints, to make reasonable efforts to compose 
differences * * * .'' ABNE, 380 U.S. at 658. Whether a carrier feels 
that the representative has sufficient support among employees should 
not affect that carrier's willingness to bargain with or work 
cooperatively with a representative. Carriers are legally obligated to 
treat with any representative certified by the Board.
    The Board would also like to remark on several commenters' use of 
the expression ``minority union'' or ``minority representative,'' a 
repeated theme in comments opposed to the NPRM. A representative 
certified under the proposed rule would not be a ``minority union.'' A 
``minority union'' is a union that does not represent all employees and 
only bargains on behalf of its members. The Board does not certify 
minority unions and will not do so under the proposed rule. The Board 
requires certified representatives to bargain on behalf of all members 
of a systemwide class or craft and this requirement will not change 
under the proposed rule.\25\ Part of the principle of exclusive 
representation under the RLA is the obligation of certified 
representatives to represent all employees fairly and without 
discrimination. Steele v. Louisville & Nashville R.R., 323 U.S. 192 
(1944). Under the proposed rule, certified representatives will remain 
the exclusive representative of all members in a craft or class and the 
duty of fair representation will obligate them to represent all 
employees, even those who vote against representation. Attempts to 
characterize a certified representative under the proposed election 
rule as a ``minority union'' are misleading and inaccurate.
---------------------------------------------------------------------------

    \25\ Minority unions are also not certified by the NLRB. Unions 
have argued, in seeking NLRB recognition of minority unions, that 
there was a practice, common in the 1930s, of companies bargaining 
with unions representing only a minority of employees at a 
workplace. Steven Greenhouse, Seven Unions Ask Labor Board to Order 
Employers to Bargain, N.Y. Times August 15, 2007.
---------------------------------------------------------------------------

    With regard to concerns about union raids and stability in employee 
representatives, the Board notes that it is not changing its showing of 
interest requirements. Any individual or organization seeking to 
represent employees who are already represented will still need to 
provide authorization cards from more than fifty percent of the class 
or craft in order to file a representation petition. For this reason, 
it is unlikely that there will be a great increase in ``raiding'' among 
unions. The Board recognizes that some commenters, such as Southwest 
Airlines (Southwest), request that there be a uniform showing of 
interest requirement regardless of whether the employees are currently 
represented by a union.

[[Page 26078]]

Southwest argues that this change would bring these rules in to 
conformity with the procedures of the NLRB. Southwest referred to the 
``anomalous situation'' where the showing of interest requirements for 
a class or craft that is already represented is higher than the number 
of voters that would be required to win a representation election under 
the proposed rules.
    In the Board's view, maintaining the higher showing of interest 
requirement for crafts or classes that are already represented will 
prevent the types of disruptions in representation that several 
commenters express concern about. While it is true that the showing of 
interest requirement would often be greater than the number of votes 
that a challenging union will need to win an election, an authorization 
card does not bind an employee to vote in favor of representation. 
Based upon the showing of interest and the Board's investigation, an 
election is authorized. During this critical period, unions and 
employers conduct campaigns to inform employees about the pros and cons 
of representation. Maintaining this strong showing of interest 
requirement will ensure that representation elections only occur where 
a significant number of employees are open to the possibility of 
changing representatives.
    In summary, there is no evidence that the proposed rule change will 
create instability in labor relations. The NPRM does not affect the 
numerous factors that contribute to stability in the airline and 
railroad industries, such as the mediation process and the existence of 
collective bargaining agreements. The Board has diverged from the 
current election procedure in many instances, including using other 
forms of ballots to carry out its statutorily-mandated duty to prevent 
carrier interference in representation elections, without threats to 
stability.

H. Decertification Under the RLA

    The majority of comments opposed to the NPRM as well as our 
dissenting colleague suggest that any change to the Board's 
interpretation of ``majority of the craft or class'' must also re-
examine decertification under the RLA. These commenters suggest that 
the two issues, certification based on a majority of ballots cast and 
decertification are inextricably linked because (1) under the NLRA, 
bargaining representatives are certified based on a majority of ballots 
cast and the NLRA explicitly provides for decertification petitions; 
and (2) in 1985, the Board consolidated the IBT's request to change 
existing rules regarding election procedures to allow employees to vote 
``no'' and to certify representatives on the basis of majority of 
ballots cast with an earlier-filed request from the Chamber of Commerce 
that the Board amend its rules to include formal decertification 
provisions. Int'l Bhd. of Teamsters, 13 NMB 1 (1985). For example, ATA 
and AIRCON assert that the

    Board historically has recognized the close relationship between 
the ``minority rule'' ballot and decertification and the wisdom for 
the two issues to be addressed in tandem. Accordingly, when the 
Board last considered the same proposed voting rule change on an 
industry-wide basis, it simultaneously considered a proposal to 
adopt a formal decertification procedure.

    As an initial point, the Board disagrees with the comments' 
supposition that the NPRM will inevitably lead to ``minority unions'' 
or ``minority rule,'' and also that all requests to change its election 
procedures must be addressed in the same proceeding. Under the proposed 
rule, the employees will cast votes either for or against 
representation or refrain from voting altogether and acquiesce in the 
will of the voting majority. The choice is theirs. It is certainly 
possible that in some elections the number of employees who actually 
cast a ballot may be less than a majority of those eligible to vote, 
but it is not the preordained outcome of every election. What is 
certain is that under the proposed rule, the Board will no longer 
substitute its presumption for an employee's intent.
    The Board believes that the method it uses to measure employee 
intent in representation elections is not intertwined with 
decertification. The commenters point to the NLRA, but it must be noted 
that the NLRA specifically provides for a decertification process. The 
1947 Taft-Hartley Amendments to the NLRA added not only the union shop 
provisions discussed below in Section III.I., but also a provision 
allowing an employee, group of employees, or any individual or labor 
organization acting on their behalf to file a petition asserting that 
the currently certified or recognized bargaining representative no 
longer represents the employees in the bargaining unit. 29 U.S.C. 
159(c)(1)(A)(ii). No similar provisions were included in the RLA of 
1926 or any subsequent amendments.
    The Board also does not believe that it must consider all requests 
to change its election procedures in the same proceeding. To be sure, 
in 1985, the Board chose to consolidate all requests for changes to its 
rules into a single proceeding. The Board, however, is not required to 
follow that procedure in every instance.
    Other commenters simply state that the Board should provide for a 
more direct means of decertifying an incumbent union. For example, 
Flexjet states that ``the Board must also change the rules to allow a 
majority of employees to vote the union out if they are displeased with 
the union.'' Similarly, Right to Work suggests in its written comment 
submitted prior to the December 7, 2010 open meeting that it is 
inappropriate for an exclusive bargaining representative to be 
certified on the basis of a ``mere majority of employees voting in an 
election'' because ``it is extremely difficult for employees to remove 
a union once it is certified as their exclusive bargaining agent, 
particularly because the NMB has not established a formal process for 
decertification.'' ATA and AIRCON state that it ``would not be merely 
imprudent for the Board to abandon the `majority rule' while failing 
contemporaneously to adopt a straightforward decertification process.'' 
Southwest states that, while it is ``neutral'' on the NPRM, it believes 
``the final rule should ensure that any new election procedures are 
applied broadly and consistently to cover representation and 
decertification procedures.''
    The courts have recognized, and the Board agrees, that employees 
have the right to reject representation. ABNE, 380 U.S. 650. Implicit 
in that right is the Board's power to certify that there is no 
representative. Teamsters, 402 F.2d at 202 (DC Cir. 1968); Russell v. 
NMB, 714 F.2d 1332 (5th Cir. 1983) (finding that since employees have 
right under the RLA to opt for non-representation, the Board could not 
refuse to process a representation application after it determined that 
applicant intended to terminate collective representation if 
certified). While not as direct as some commenters might like, the 
Board's existing election procedures allow employees to rid themselves 
of a representative. Currently, an individual employee or group of 
employees who no longer desire to be represented by a union must 
solicit a showing of interest from their fellow employees and file an 
application with the Board. In the resulting election, employees have 
the opportunity to vote for the incumbent or for the applicant with the 
understanding that the applicant if certified will subsequently 
disclaim interest in the craft or class extinguishing the 
certification. Under current election procedures, there is no 
opportunity to vote ``no'' or against representation entirely. 
Employees who want to vote ``no'' must instead abstain from voting.

[[Page 26079]]

The proposed change will give these employees the opportunity to 
affirmatively cast a ballot for ``no union.'' Thus, in these 
circumstances, the NPRM would give employees an opportunity to vote for 
the incumbent, for the applicant, or to cast a ballot for no 
representation.
    Southwest also suggests that the Board should amend its showing of 
interest requirement to require a 35% showing of interest regardless of 
whether the employees in the craft or class at issue are represented or 
unrepresented. The Board's current election rules require a 35% showing 
of interest among employees who are unrepresented and a more than 50% 
showing of interest among employees who are already represented and 
covered by an existing collective bargaining agreement.
    The Board does not believe that its showing of interest 
requirements should be changed. In carrying out its obligations under 
the RLA, the Board must balance competing statutory goals and the 
current showing of interest requirements are justified in the Board's 
view by the benefit these requirements provide to preserve stability in 
collective bargaining relationships.
    It is well-settled that a major objective of the RLA is ``avoidance 
of industrial strife, by conference between the authorized 
representatives of employer and employee.'' ABNE, 380 U.S. at 658 
(quoting Virginian Ry., 300 U.S. at 547). The Russell court recognized 
that

[i]t cannot be gainsaid that the Act does in fact encourage 
collective bargaining as the mode by which disputes are to be 
settled and work stoppages avoided. Under the Act, Congress gave 
unions ``a clearly defined and delineated role to play in 
effectuating the basic congressional policy of stabilizing labor 
relations in the industry.'' * * * The Board is therefore correct 
when * * * it argues that one of the Board's purposes is to support 
collective bargaining.

714 F.2d 1332, 1342-43 (internal citations omitted). Thus, the Board 
must also foster stability in collective bargaining relationships to 
maintain industrial peace. As many commenters point out in opposition 
to the NPRM, representation elections and organizing campaigns which 
necessarily precede them cause unsettled labor conditions and foster 
instability. As previously discussed, the Board believes that changing 
its showing of interest requirements would more likely lead to 
instability than the proposed change to how it measures employee 
intent. For this reason, the Board has long required a majority showing 
of interest before authorizing an election that will disturb an 
existing collective bargaining relationship and it will continue to do 
so.

I. Impact of the Proposed Change on Section 2, Eleventh of the RLA

    In their comment, U.S. Senators Lamar Alexander, Robert Bennett, 
Richard Burr, Saxby Chambliss, Bob Corker, Michael Enzi, Orrin Hatch, 
and Johnny Isakson state their concern that

[i]f minority unions are indeed permitted, both we and many of our 
colleagues will also be concerned with the impact of the mandatory 
union shop provisions which are permitted nationwide under Section 
2, Eleventh of the Railway Labor Act. Unlike, the NLRA, the RLA has 
no carve-out or exclusion permitting the operation of state ``right-
to-work'' laws. If the unions which are seeking mandatory dues 
payments do not have the active support of a majority of employees 
as shown in a secret-ballot election, it would not be appropriate to 
require employees who do not support the minority union to pay dues 
to that organization where state law is intended to protect their 
right to refuse to do so.

    The Board believes that the proposed change will not affect Section 
2, Eleventh for two reasons: First, the Board does not believe that its 
proposed change will lead to the certification of representatives that 
lack the support of a majority of employees; and second, the difference 
between the union security provisions of the NLRA and RLA are premised 
not on whether majority of the craft or class means majority of 
eligible voters or majority of ballots cast but rather on a recognition 
of the interstate nature of air and rail transportation.
    As discussed in Section III.D., the Board believes it has the 
statutory authority to certify a collective bargaining representative 
based on a majority of ballots cast whether or not there is majority 
participation in that election. Thus, the Board disagrees with the 
Senators' characterization of the NPRM as permitting the certification 
of ``minority unions.'' There is no basis to believe that certification 
based on a majority of ballots cast results in a representative 
supported by a minority of employees in the craft or class. As 
previously stated, under the proposed change, employees will be able to 
vote for or against representation or refrain from voting and acquiesce 
in the will of the majority. The Board does not certify minority unions 
under its current election procedures and will not do so under the 
proposed rule. The Board requires certified representatives to bargain 
on behalf of all members of a class or craft and this requirement will 
not change under the proposed rule. Once certified by the Board as 
exclusive representative of a craft or class, the union has an 
obligation to represent fairly all employees in that craft or 
class.\26\ Under the proposed rule, certified representatives will 
remain the exclusive representative of all members in a craft or class 
and the duty of fair representation will obligate them to represent all 
employees, even those who vote against representation. Attempts to 
characterize a certified representative under the proposed election 
rule as a ``minority union'' are misleading and inaccurate.
---------------------------------------------------------------------------

    \26\ Although the duty of fair representation is not explicitly 
set forth in the RLA, the courts have found that implicit in the 
principle of exclusive representation is the obligation to represent 
employees fairly and without discrimination. Louisville & Nashville 
R.R., 323 U.S. 192 (1944).
---------------------------------------------------------------------------

    Section 2, Eleventh provides that, notwithstanding the law of ``any 
State,'' a carrier and an organization may make an agreement requiring 
all employees within a stated time to become a member of that 
organization provided there is not discrimination against any employee 
and that membership in the organization is not denied or terminated for 
``any reason other than failure of the employee to tender the periodic 
dues, initiation fees, and assessments (not including fines and 
penalties) uniformly required as a condition of acquiring or retaining 
membership.'' 45 U.S.C. 152, Eleventh. Section 2, Eleventh, or the 
``union shop'' provision of the RLA was added in 1951. Union shop 
agreements had been outlawed under the 1934 amendments when union shop 
agreements were used by employers to establish and maintain company 
unions ``thus effectively depriving a substantial number of employees 
of their right to bargain collectively.'' S.Rep. No.81-2262, at 3 
(1951). By 1950, company unions in this field had practically 
disappeared. Id.
    The legislative history also indicates that Section 2, Eleventh was 
intended to extend to ``railroad labor the same rights and privileges 
of the union shop that are contained in the Taft-Hartley Act.'' 96 
Cong. Rec. 17,055 (1951) (remarks of Rep. Brown). The RLA's union shop 
provision was ``substantially the same as those of the Labor-Management 
Relations Act [of 1947 or Taft-Hartley] as they have been administered 
and that such differences as exist are warranted by experience or by 
special conditions existing among employees of our railroads and 
airlines.'' Id.
    The legislative history notes that these ``special conditions'' 
were the Federal nature of regulation of rail and air carriers and the 
system-wide representation and bargaining required under the RLA. In 
the floor debate in the House, in response to a question about

[[Page 26080]]

whether Section 2, Eleventh would recognize the validity of State right 
to work laws or supersede those laws, Rep. Biemiller stated:

    We must recognize that all aspects of the economics of the 
railroad industry are under national control, not under State 
control. Since the passage of the Interstate Commerce Act in 1887, 
it has been wisely recognized that all matters relating to railroads 
whether they be rates or labor problems are much better handled by 
the Federal Government than they are by the various State 
governments. If we were to break down this Federal control in the 
field of railway labor we would be setting a precedent that could 
only lead to chaos in the entire railroad industry, because 
certainly the question of rates and other problems must stay in 
Federal hands. I think that point should be recognized very clearly 
when one talks about the possibility of trying to have State labor 
legislation apply to problems of railroad labor. After all we must 
also recognize that the contracts that are made between railroad 
management and railroad labor are made on a system basis; they are 
not made on a State-wide basis; some will cover as many as thirteen 
or fourteen States in their various terms. To try to break those 
down in terms of the conflicting laws of the thirteen or fourteen 
States covered by a particular railroad system would lead inevitably 
only to chaos.

96 Cong. Rec. 17,236 (1951). The differences in the union shop 
provisions of Section 2, Eleventh and the provisions of the NLRA were 
based on the recognized differences between the industries at issue. 
Representative Heselton stated that the House Committee on Interstate 
and Foreign Commerce specifically rejected adding language that would 
exclude union shop coverage in right to work states:

    The second difference is the omission of the requirement 
contained in section 14(b) of the Labor-Management Relations Act [of 
1947], which reads as follows:
    Nothing in this act shall be construed as authorizing the 
exclusion or application of agreements requiring membership in a 
labor organization as a condition of employment in any State or 
Territory in which such execution or application is prohibited by 
State or Territorial law.
    Again, the committee [the House Committee on Interstate and 
Foreign Commerce] considered this carefully but decided not to 
include it. I think no one will dispute the fact that if any of our 
business units is primarily interstate in character, it is the 
transportation business and particularly railroads and airlines. 
Under the Railway Labor Act, agreements must be system-wide, and in 
an overwhelming number of instances, cross many State lines. 
Seniority districts lap over from one State to another. Therefore 
any requirement which would exclude union shop coverage in those 
States prohibiting union shop agreements would be both illogical and 
unworkable.

96 Cong. Rec. 17238 (1951).

    Thus, the decision by Congress to pre-empt State laws that would 
otherwise ban union shops is due to the interstate nature of air and 
rail transportation, the history of Federal rather than State 
regulation of those industries, and the system-wide bargaining required 
under the Act. It is not premised on an interpretation of the 
``majority of craft or class'' language of Section 2, Fourth.

J. Cost of the Proposed Change to the Board's Election Procedures

    In their comments, Littler and WestJet each raise the issue of the 
potential additional cost of the Board's proposed change to its 
election rules. Littler suggests that costs ``which may flow from the 
rule change'' will affect both the Board itself as well as the 
regulated entities in the air and rail industries. Littler states that:

The Board has not analyzed whether and how the new rule will 
increase the number of elections conducted by the Board in a given 
fiscal year, and whether the Board will need to increase its staff 
to conduct those additional elections within the required statutory 
timeframe. Carriers and unions will also bear additional costs if 
elections are more frequent due to the administrative requirements 
the Board places on them during the elections, not to mention the 
costs associated with conducting and organizing election campaigns 
more frequently.

WestJet, a Canadian company, expressed its concern that the proposed 
rule would negatively affect any future decision to invest in the U.S. 
market because

[f]rom a financial standpoint, the likelihood of immediate 
unionization without support from a true majority of employees 
represents a substantial cost increase that WestJet could not ignore 
when making a decision to employ U.S. workers. This is not because 
of an increase in wages and benefits, which WestJet sets at 
competitive levels. Rather, it would be the immediate costs 
associated with union elections, negotiations and grievances/
arbitrations that would dissuade WestJet from expanding and creating 
jobs for U.S. citizens.

    Both Littler and WestJet assume that implementing the proposed 
change must inevitably lead to more applications, more elections, and, 
as WestJet characterizes it, ``immediate unionization.'' Neither 
Littler nor WestJet, however, offers any factual support for their 
assumptions. The decision to invoke the Board's services in a 
representation dispute rests entirely with an individual union or the 
affected employees. It is not a matter for the Board or for the 
carrier. The decision to proceed with an election depends upon the 
Board's investigation of the dispute and a determination that certain 
threshold requirements have been met such as the showing of interest 
needed to trigger an election. See, e.g., 29 CFR 1206.2, 1206.5; NMB 
Representation Manual Sec. Sec.  3.601, 19.6, 19.601. Further, holding 
a representation election does not automatically result in a union 
victory. This has certainly been the Board's experience under its 
current procedures and it is also true under the NLRA where bargaining 
representatives are certified based on a majority of ballots cast. For 
example, in its comment, Litter states

    Our review of Board election data since 1935 shows that the 
union win rate in Board-conducted elections approaches sixty-eight 
percent (68%). By comparison, the union win rate in elections held 
during the same period under the NLRA, utilizing the election 
process currently being proposed by the Board, was only fifty-eight 
percent (58%).\27\
---------------------------------------------------------------------------

    \27\ In its comment, Delta provides similar statistics, stating 
that ``[r]eview of NMB decisions reveals that the union success rate 
in NMB-conducted election under the RLA has been approximately 
67.23% from 1935 to date. In contrast, the union success rate in 
NLRB elections has been approximately 54% from 1948 to date. (Data 
prior to 1948 is limited).''

    The proposed change does not add a fee, require a payment or impose 
new burdens on either the Board or the participants in the election. 
The proposed rule would provide for certification of an employee 
representative based on a majority of ballots cast rather than a 
majority of eligible voters. Thus, the proposed change affects only one 
part of the Board's election procedure: The method used by the NMB to 
determine the outcome of a self-organization vote by employees after an 
application has been filed, and an election has been authorized. The 
Board believes that, regardless of the method used to determine the 
outcome of a representation election, it will continue to function 
within the budget appropriated by Congress and expeditiously resolve 
representation disputes under the RLA by investigating all applications 
filed and, when appropriate holding elections, as it has since 
1934.\28\ Further, as discussed below, the Board also believes that the 
proposed change to its election

[[Page 26081]]

procedures will not impose any additional requirements or costs than 
are already necessary to effectuate the Congressional intent to 
guarantee employees in the air and rail industries the right to 
organize and chose a collective bargaining representative free from any 
carrier interference or influence.
---------------------------------------------------------------------------

    \28\ It should also be noted that the ``required statutory 
timeframe'' noted by Littler refers to the language of Section 2, 
Ninth that provides that ``it shall be the duty of the Mediation 
Board, upon request of either party to the dispute, to investigate 
such dispute and to certify to both parties, in writing, within 
thirty days'' the name of the individual or organization authorized 
to represent the affected employees. It is well-settled that this 
time provision is directory rather than mandatory. See, e.g., Air 
Florida v. NMB, 534 F. Supp. 1, 11 (S.D. Fla. 1982) (citing System 
Fed'n v. Virginian Railway, 11 F. Supp. 621, 627 (E.D. Va. 1935), 
aff'd. 84 F.2d 641 (4th Cir. 1936), aff'd. 300 U.S. 515 (1937)); In 
re Continental Airlines, Corp., 50 B.R. 342, 348 n. 3 (S.D.Tex. 
1985).
---------------------------------------------------------------------------

    The NPRM does not alter the limited role prescribed by statute for 
carriers in representation disputes. From its inception, the NMB has 
understood that Congress intended to eliminate the carrier, as a party, 
from any representation dispute. 1 NMB Ann Rep 4 (1935). Under Section 
2, Ninth of the Act, the Board is authorized to resolve disputes 
between employees as to whom, if anyone, shall represent them in 
collective bargaining. The dispute is not between employees and the 
carrier. Thus, as the courts have long recognized, the only proper 
parties to the NMB's representation proceedings are employees and their 
potential bargaining representatives. ABNE, 380 U.S. at 667. As has 
been previously discussed, carriers cannot invoke the NMB's services in 
a representation dispute. Ry. Labor Executives' Ass'n, 29 F.3d at 664-
66 (DC Cir. 1994). Carriers have no vote in representation elections 
and the Act forbids them from interfering or influencing their 
employees' organizational efforts and choice of representative.\29\ 
Littler refers to the ``administrative requirements'' demanded by the 
Board during the election, but the only direct burden provided by the 
RLA is authority to have access to carrier records when necessary. 
Thus, the Board requires the carrier to supply the information needed 
for holding an election, such as a list of eligible employees in the 
craft or class.
---------------------------------------------------------------------------

    \29\ 45 U.S.C. Section 151a. The second and third general 
purposes of the Act are ``(2) to forbid any limitation upon freedom 
of association among employees or any denial, as a condition of 
employment or otherwise, of the right of employees to join a labor 
organization; [and] (3) to provide for the complete independence of 
carriers and of employees in the matter of self-organization to 
carry out the purposes of this chapter * * * .''
---------------------------------------------------------------------------

    The carrier's limited role in representation proceedings has long 
been recognized by the courts. In ABNE, the Court rejected the 
carrier's claim that it should be accorded a greater role in the 
Board's representation investigations, noting that ``while the Board's 
investigation and resolution of a dispute * * * might impose some 
additional burden upon the carrier, we cannot say that the latter's 
interest rises to a status which requires the full panoply of 
procedural protections.'' 380 U.S. at 668. In In re Continental 
Airlines, Corp., 50 B.R. 342 (S.D.Tex. 1985), the bankruptcy court 
rejected Continental's argument that a representation election among 
its employees should be stayed because the substantial costs of 
responding to any union campaign would irreparably harm its 
reorganization efforts. The bankruptcy court stated that

    At best, that argument is irrelevant--for Continental's anti-
union activity is a purely voluntary undertaking. At worst, the 
substantial expenditures contemplated could possibly be illegal--for 
the RLA repeatedly prohibits carriers from in any way interfering 
with or influencing employees' organizational efforts or choice of a 
bargaining representative.

50 B.R. at 354. Likewise, the NPRM does not alter the role or 
obligation of the union in a representation dispute. The Board once 
again notes that decision to undertake an organizing campaign and file 
an application with the Board rests entirely with the union. The union 
applies its own cost benefit analysis to make that decision and the 
Board has no basis for concluding that the change proposed by the NPRM 
will outweigh every other consideration that goes into such a decision. 
Once a union has invoked the Board's process, it has surely determined 
that the costs of seeking an election are worth bearing.
    Finally, the Board notes that the proposed rule has been reviewed 
with regard to the requirements of the Regulatory Flexibility Act (RFA) 
\30\ and, pursuant to Section 605 of the RFA, the Board has certified 
that the proposed rule will not have a significant economic impact on a 
substantial number of small entities. Clarification to NPRM, 74 FR 
63,695 (Dec. 4, 2009).
---------------------------------------------------------------------------

    \30\ Under the RFA, a Federal agency must prepare a regulatory 
flexibility analysis and assessment of the economic impact of its 
proposed rule on small business entities, unless the agency 
certifies that the proposed rule will not have a significant 
economic impact on a substantial number of small entities, and 
provides a factual basis for that certification. 5 U.S.C. 601, et 
seq.
---------------------------------------------------------------------------

K. Effect of the NPRM on Other Election Procedures

    In its comments in opposition to the NPRM, ASC suggests that the 
Board has created uncertainty for its constituents by failing to 
undertake a global overhaul of its election procedures.\31\ The Board 
does not believe that the NPRM creates uncertainty regarding its 
election procedures. As has been previously discussed, the proposed 
change affects only one part of the Board's election procedure: The 
method used by the NMB to determine the outcome of a self-organization 
vote by employees after an application has been filed and an election 
has been authorized.
---------------------------------------------------------------------------

    \31\ ASC, in its comment, also asks whether the Board has left 
in ``limbo'' a request from the IBT that the Board change its 
policies and require carriers in representation disputes to provide 
the applicant organization with a list of employee names and 
addresses (comparable to the Excelsior list required in NLRB 
representation cases). This request was made in the context of a 
representation case involving Continental Airlines with the IBT 
requesting that the ``Board provide the organization with a list of 
employee names and addresses in this case.'' During the pre-
docketing investigation of this case, the IBT, by letter dated 
December 7, 2009, withdrew the request in that case and asked to 
proceed to an immediate election under the existing election 
procedures. The Board granted the request, an election was 
authorized, and the tally was held on February 12, 2010.
    ASC also states the Board should not ignore the impact of the 
NPRM on ``critical standards that the Board has consistently and 
historically applied. For instance, the Board has long recognized 
the propriety of system-wide crafts or classes.'' While the Board 
appreciates ASC's concerns, the change proposed in the NPRM is 
limited to modifying the method used to determine the craft or class 
representative based on a majority of valid ballots cast rather than 
a majority of eligible voters and to provide employees with an 
opportunity to vote ``no'' or against union representation. The NPRM 
has no impact on the Board's policies and case law with respect to 
craft or class or system determinations.
---------------------------------------------------------------------------

1. Second Elections/Run-Off Elections
    ASC expresses its concern that the NPRM does not address how the 
change in interpretation of ``majority of the craft or class'' will 
affect multi-union elections. While the Board acknowledges that its 
Representation Manual, which provides procedural guidance to 
participants,\32\ will have to be modified once the proposed change 
becomes effective, the Board's existing rule regarding run-off 
elections continues to apply and addresses ASC's concerns. The Board's 
rule provides:
---------------------------------------------------------------------------

    \32\ The Representation Manual is an internal statement of 
agency policy and not a compilation of regularly promulgated 
regulations having the force and effect of law. Hawaiian Airlines v. 
NMB, 107 LRRM 3322 (D. Haw. 1979), aff'd without op. 659 F.2d 1088 
(9th Cir. 1981).

    (a) If in an election among any craft or class no organization 
or individual receives a majority of the legal votes cast, or in the 
event of a tie vote, a second or run-off election shall be held 
forthwith: Provided, That a written request by an individual or 
organization entitled to appear on the runoff ballot is submitted to 
the Board within ten (10) days after the date of the report of 
results of the first election.
    (b) In the event a run-off election is authorized by the Board, 
the names of the two individuals or organizations which received the 
highest number of votes cast in the first election shall be placed 
on the run-off ballot, and no blank line on which voters may write 
in the name of any organization or individual will be provided on 
the run-off ballot.
    (c) Employees who were eligible to vote at the conclusion of the 
first election shall be eligible to vote in the run-off election 
except (1) those employees whose employment

[[Page 26082]]

relationship has terminated, and (2) those employees who are no 
longer employed in the craft or class.

29 CFR 1206.1. Applying the existing run-off rule to the hypothetical 
election tally proposed by ASC, namely that where 100 ballots are cast 
with 20 for Union A, 45 for Union B, and 35 for no representation, a 
run-off election will be held between union A and union B provided one 
submits a timely written request to appear on the ballot as required by 
1206.1(a). It is equally clear under the existing rule, that where a 
majority of employees have cast valid ballots for representation, the 
appropriate choice once a run-off election is authorized is between the 
two individuals or organizations that received the highest number of 
votes. The Board disagrees with ASC's assertion that, under the NPRM, 
there is no basis for aggregating votes cast for representation. To the 
contrary, where a majority of employees indicate a preference for 
representation, the Board's duty is to determine which individual or 
organization is the ultimate employee choice through a run-off 
election.\33\
---------------------------------------------------------------------------

    \33\ Contrary to our dissenting colleague's contention, the 
Board has never suggested that the purpose of the NPRM is to conform 
the NMB's voting procedures to those of the NLRB. As the Board has 
repeatedly noted, the aim of the Board is to more accurately 
ascertain the clear, uncoerced choice of a bargaining 
representative, if any, by the affected employees. Further, in the 
hypothetical Chairman Dougherty poses in her dissent, a majority of 
those casting ballots have indicated a preference for a bargaining 
representative. Accordingly, the only question left to be determined 
is which of the two organizations will ultimately be chosen as the 
affected employees' representative. A run-off election under the 
Board's existing rules will resolve that question.
---------------------------------------------------------------------------

2. Election Interference Remedies
    The ASC raised a concern over the fact that the proposed rule would 
result in what is currently referred to as a Laker ballot being used in 
all NMB elections. Currently, a Laker ballot is sometimes used in a re-
run election following the Board's determination of carrier election 
interference. In recent years, it has been used on occasions when the 
Board has determined that a standard re-run election would not allow it 
to ascertain the desires of employees regarding representation. See, 
e.g., Aeromexico, 28 NMB 309 (2001) (determining that carrier's post-
election interviews of members of the craft or class interfered with 
laboratory conditions, violated the secrecy of the ballot, coerced 
employees in the exercise of their rights, and interfered with Board's 
investigation).
    It is inaccurate to describe the rule in that way because the Board 
has never indicated that it was changing its ballot to remove the 
write-in option. The Laker ballot is a yes/no ballot and does not 
include a write-in option. In the NPRM, the Board proposed a narrowly 
focused change to its election procedures to allow that a majority of 
valid ballots cast will determine the craft or class representative. 
The NPRM did not describe the new election procedures as identical to 
either NLRB election procedures or to the Board's Laker ballot 
procedures. Nor did it describe the proposed rule as resulting in a 
yes/no ballot. Under the new rule, the Board will provide an 
opportunity for employees to vote ``no'' or against union 
representation. This change is required where certification is based on 
a majority of ballots cast, because to ensure employee freedom of 
choice, voters need to be able to choose not to be represented. Under 
the new rule, the Board will no longer presume that the failure or 
refusal of an eligible employee to vote is a vote against 
representation. Instead, employees who do not wish to be represented 
will affirmatively vote ``no.'' The rule does not alter the Board's 
practice of allowing write-in votes.\34\ Write-in votes are a common 
characteristic of all NMB elections except where a run-off or Laker 
election is conducted. International Total Services, 16 NMB 231, 233 
(1989) (rejecting union objection to inclusion of write-in option since 
the provision for write-in votes in NMB elections has remained largely 
unchanged for over 50 years). Moreover, the Board's experience has 
shown that the write-in vote is an effective means for permitting 
employee freedom of choice, as in some cases write-in candidates have 
received sufficient votes to be certified by the Board. Id. See also, 
Zantop Int'l Airlines, Inc., 9 NMB 70, 77 (1981) (The write-in option 
``allows the eligible voter to indicate whether he desires 
representation by the applicant organization or any other organization 
or individual. Such a ballot allows the Board to ascertain the name of 
the duly designated and authorized representative of the 
employees.'').\35\
---------------------------------------------------------------------------

    \34\ Since under the rule, the Board is maintaining its practice 
of allowing write-in votes there is no substantive change requiring 
additional comment as suggested by our dissenting colleague. 
Chairman Dougherty states that ``this rulemaking violates the 
`logical outgrowth test' '' because interested parties could not 
have reasonably anticipated the final rule from the draft rule in 
NPRM. To be sure, ``logical outgrowth'' test applies where an agency 
changes its final regulation in some way from the proposed 
regulation for which it provided notice and requested comment, as 
required under the APA. City of Waukesha v. EPA, 320 F.3d 228, 245 
(DC Cir. 2003). In the instant rulemaking, however, the Board is 
adopting the proposed rule as the final rule. The NPRM described the 
proposed changes to the election procedures with the required 
specificity. The Board proposed to certify representatives based on 
a majority of ballots cast and, as an inherent part of this change, 
to provide eligible voters with the opportunity to vote ``no'' or 
against representation. The Board did not propose to depart from its 
longstanding write-in practice. The Board did not propose other 
changes to its election rules. There is no basis to assert that 
interested parties did not understand what changes to comment upon 
since the Board sought comment on the only changes it is proposing 
to make. Further, since the Board has always counted valid write-in 
votes as votes for representation and will continue to do so, there 
is no potential effect on the outcome of elections. Valid votes for 
the applicant organization or any other organization or individual 
will be counted as votes for representation. The change under the 
rule is that only ``no'' votes will be counted as votes against 
representation. This change was clearly set forth in the NPRM, 
commented upon by interested parties, and adopted as part of the 
final rule.
    \35\ In affirming the Board's determination in Zantop, the court 
of appeals held that the RLA gives the Board the discretion to 
select the form of ballot and such a selection is not subject to 
judicial review. Zantop Int'l Airlines, Inc. v. National Mediation 
Bd., 732 F.2d 517, 521 (6th Cir. 1984).
---------------------------------------------------------------------------

    ASC, in its comment, expressed concern that the Key ballot, 
currently used as a remedy only in egregious instances of election 
interference, will become more widely used because, in its view, the 
Laker ballot remedy is no longer an option. When the Key ballot is 
used, an election results in union certification unless a majority of 
eligible voters return votes opposing representation. Key Airlines, 16 
NMB 296 (1989). It has been used rarely by the Board except in cases of 
most egregious carrier interference. See, e.g., Washington Central 
Railroad, 20 NMB 191 (1993) (carrier polled employees about union 
support, discharged union supporters, and tried to coerce an employee 
to withdraw a lawsuit based on the carrier's violations of the RLA).
    The Board has sole authority to determine the remedy for election 
interference. See, e.g. LGS Lufthansa Serv. v. NMB, 116 F.Supp.2d 181 
(D.DC 2000) (holding that the Board's decision to hold a Laker ballot 
election was unreviewable by the court); Aircraft Mechanics Fraternal 
Ass'n v. United Airlines, Inc., 406 F.Supp. 492 (N.D. Cal. 1976). 
Unlike the NLRB, the Board does not have the power to issue unfair 
labor practices charges; however, under Section 2, Ninth of the Act, 
the Board has the duty to ensure that employees' choice of 
representative is made without carrier influence, interference or 
coercion. See United Airlines, 406 F.Supp. at 498 n.5, 502-03. (``Thus 
the 1934 amendments gave plenary power to the Board to deal with 
employer influence in the designation of representatives, rendering 
judicial intervention unnecessary.'') The test in any case of alleged 
interference in a

[[Page 26083]]

Board election is whether the laboratory conditions which the Board 
seeks to promote have been contaminated. Zantop International Airlines, 
6 NMB 834 (1979). In order to remedy such interference and ensure that 
employees are able to choose their representative without carrier 
interference, the Board has on occasion fashioned an election with 
rules differing than those under what has been its standard ballot. In 
response to carrier interference in Laker Airways, Ltd., 8 NMB 236 
(1981), the Board held a ballot box election with a yes/no ballot. In 
Laker, the majority of those employees actually casting ballots 
determined the outcome of the election, regardless of whether a 
majority of employees participated in the election. Id. at 257.
    While the Laker ballot has been used in instances of carrier 
interference, the most common remedy for election interference has been 
a re-run election using the Board's standard election procedures. In 
recent years, a standard re-run election has been the Board's remedy in 
even very serious instances of election interference. See, e.g., 
Stillwater Central Railroad, Inc., 33 NMB 100 (2006) (carrier conducted 
frequent meetings, interrogated employees about their union views, and 
granted wage increases and improved working conditions during the 
laboratory period); Pinnacle Airlines Corp., 30 NMB 186 (2003) (carrier 
wrongfully terminated a union supporter and engaged in surveillance of 
employees during the laboratory period).
    The Board has the discretion to respond to allegations of election 
interference as it sees fit according to the unique facts of each case 
before it. See Switchmen's Union, 320 U.S. 297. Under the rule, the 
Board will continue to investigate allegations of election interference 
and determine when laboratory conditions have been tainted. The Board 
will consider appropriate remedies, including the Key ballot remedy, on 
a case by case basis, determine what is most appropriate, and explain 
its rationale in each case.

IV. Conclusion

    Based on the rationale in the proposed rule and this rulemaking 
document, the Board hereby adopts the provisions of the proposal as a 
final rule. This rule will apply to applications filed on or after the 
effective date.

Dissenting Statement of Chairman Dougherty

    Chairman Dougherty dissented from the action of the Board majority 
in adopting this rule. Her reasons for dissenting are set forth below.
    For 75 years, through twelve Presidential administrations, the 
National Mediation Board (NMB or Board) has conducted representation 
elections by requiring that a majority of eligible voters in a craft or 
class vote in favor of representation in order for a representative to 
be certified. This method of voting provides the most certain way of 
determining whether the majority of the craft or class affirmatively 
desires to change the status quo, and, as the Board has stated many 
times, it serves the Board's primary statutory mandate of maintaining 
labor stability in the airline and railroad industries.
    I dissent from the rule published today for the following reasons: 
(1) The timing and process surrounding this rule change harm the agency 
and suggest the issue has been prejudged; (2) the Majority has not 
articulated a rational basis for its action; (3) the Majority's failure 
to amend its decertification and run-off procedures in light of its 
voting rule change reveals a bias in favor of representation and is 
fundamentally unfair; and (4) the Majority's inclusion of a write-in 
option on the yes/no ballot was not contemplated by the Notice of 
Proposed Rulemaking (NPRM) and violates the notice-and-comment 
requirements of the Administrative Procedure Act (APA).\1\
---------------------------------------------------------------------------

    \1\ I do not address the Board's statutory authority to make the 
rule change because my strong view that this rulemaking is bad 
public policy and violates the APA gives me sufficient cause to 
dissent from the action of the Majority and makes it unnecessary for 
me to reach the question of statutory authority.
---------------------------------------------------------------------------

    I also note the conflicting nature of several portions of this rule 
and preamble. As discussed further below, in several instances the 
Majority arbitrarily favors a rationale when it advantages the cause of 
representation, and then rejects the identical rationale when it 
supports the right of employees to be unrepresented. These strategic 
inconsistencies contribute to the appearance that this rulemaking has 
been a premeditated attempt to advantage certain interests over others.

Procedural Concerns

    In my dissent to the NPRM, I voiced concerns about the negative 
perceptions this rule change and its process have created for the NMB. 
I renew those concerns here. For decades, the Board consistently upheld 
the current election rule and repeatedly promised its constituents that 
any consideration of a rule change would follow the procedures used in 
1985 following petitions from the International Brotherhood of 
Teamsters (IBT) and the Chamber of Commerce (Chamber). Delta Air Lines, 
Inc., 35 NMB 129 (2008); Chamber of Commerce, 14 NMB 347 (1987). The 
Board has also consistently stated that it would require a heightened 
standard of proof. Delta, 35 NMB at 132; Chamber, 14 NMB at 356. Even 
if my colleagues believe they are not legally obligated to comply with 
the Board's previously established standards, the Board should have 
carried through on the promises made to its constituents. An agency 
should not always act simply because it thinks the law does not 
prohibit it from acting. I believe independent agencies have an 
obligation to avoid even the appearance of impropriety. The Board's 
failure to do so in this instance has damaged the Board's reputation. 
This damage could have been prevented had the Board chosen to follow a 
more participatory procedure.
    My colleagues have provided absolutely no reason for their failure 
to comply with the Board's past promises except that they believe they 
are not legally bound. This leaves the impression that they rejected 
the more searching procedure because their minds were already made up 
about the outcome. The Majority's failure to follow the procedures and 
standards the Board had set for itself--so soon after a majority-
changing Presidential election and in the midst of several large 
representation elections \2\--creates the perception that the Board 
prejudged the issue and is acting out of political motivation. My 
concerns about political motivation and prejudgment are deepened by the 
fact that, as I previously discussed in a letter to several United 
States Senators,\3\ I was excluded from the process of crafting the 
NPRM and given bizarre and arbitrary deadlines for drafting a dissent--
actions which defied any reasonable, innocent explanation. In the 
interest of preserving the good reputation of this independent agency 
and avoiding the appearance of predetermination, we should have

[[Page 26084]]

followed the Chamber of Commerce procedures and been mindful of 
appearances relating to the current representation landscape.
---------------------------------------------------------------------------

    \2\ That some view this rule change as intertwined with large 
elections at Delta is made clear by the fact that both the 
International Association of Machinists (IAM) and the Association of 
Flight Attendants (AFA) withdrew representation applications either 
shortly before or on the day the NPRM was published. The AFA's 
withdrawal letter dated November 3, 2009, in NMB Case No. CR-6957 
plainly stated it was withdrawing its application in anticipation of 
the rule change.
    \3\ The letter was sent on November 2, 2009 to United States 
Senators Johnny Isakson, Bob Corker, Jim Bunning, Robert Bennett, 
Saxby Chambliss, George Voinovich and Orrin Hatch.
---------------------------------------------------------------------------

    Two entities, the Air Transport Association (ATA) and the National 
Right to Work Legal Defense Foundation (Right to Work), filed motions 
to disqualify Members Hoglander and Puchala from consideration of this 
rule change because of alleged prejudgment. In denying the motions for 
their own recusal, my colleagues claim ``[t]he Board majority followed 
the mandates of the APA in considering, drafting, adopting, and 
promulgating the NPRM.'' However, the Majority has failed to address or 
explain my exclusion and other procedural defects in the filing of the 
NPRM, including the censorship of my dissent from the NPRM. These 
defects should be explained, and their impact on the issue of 
prejudgment and inconsistency with the APA should be addressed. Because 
the Majority has not addressed these issues, I do not join my 
colleagues in rejecting the motions for disqualification.

Insufficient Justification for the Rule Change

    The Majority's stated justification for the rule change is that 
``this change will more accurately measure employee choice in 
representation elections.'' This justification fails the APA's 
arbitrary and capricious test because the assertion that the new rule 
will be better than the old rule at measuring employee choice is 
incorrect. Additionally, the Majority has failed to provide a rational 
basis for the timing of the change and has ignored the complexities of 
the RLA and the Board's frequently-affirmed reasons for its current 
election rule. The capriciousness of the Majority's stated 
justification is further demonstrated by its decision to ignore the 
RLA's labor stability mandate in making this rule change while 
simultaneously relying on it as an excuse for not making another 
change.
    As an initial matter, the Majority's assessment of the burdens 
placed on it by the APA is incorrect. The Majority suggests that 
Federal Communication Commission v. Fox Television Stations, 129 S. Ct. 
1880 (2009), allows it to change 75 years of precedent without 
providing a reason why this change is necessary at this time. In the 
preamble, the Majority takes the position that Fox requires only the 
barest minimum justification and does not require explanation of its 
rejection of the reasons for the existing rule. This ignores Justice 
Scalia's statement in Fox that ``a reasoned explanation is needed for 
disregarding facts and circumstances that underlay or were engendered 
by the prior policy.'' Id. at 1811. Also, Justice Kennedy's concurrence 
clearly states: ``an agency's decision to change course may be 
arbitrary and capricious if the agency ignores or countermands its 
earlier factual findings without reasoned explanation for doing so,'' 
and ``[a]n agency cannot simply disregard contrary or inconvenient 
factual determinations it made in the past. * * *'' \4\ Id. at 1824 
(Kennedy, J., concurring).
---------------------------------------------------------------------------

    \4\ When, as in Fox, there is no majority opinion, the Court's 
holding is the position taken by those justices ``who concurred in 
the judgments on the narrowest grounds.'' Marks v. United States, 
430 U.S. 188, 193 (1977) (internal citation omitted). Both Justice 
Scalia's plurality opinion and Justice Kennedy's concurring opinion 
agree that agencies cannot simply ignore prior determinations. See 
Fox, 129 S. Ct. at 1811.
---------------------------------------------------------------------------

    Fox also does not overrule the significant body of APA law 
requiring that an agency ``examine the relevant data and articulate a 
satisfactory explanation for its action including a rational connection 
between the facts found and the choice made.'' Motor Vehicle Mfr. Ass'n 
of the United States v. State Farm Auto. Ins. Comp., 463 U.S. 29, 43 
(1983) (internal citation omitted). Moreover, ``an agency changing its 
course must supply a reasoned analysis. * * * [I]f it wishes to depart 
from its prior policies, it must explain the reasons for its 
departure.'' Panhandle E. Pipeline Co. v. Fed. Energy Regulatory 
Comm'n, 196 F.3d 1273, 1275 (DC Cir. 1999) (internal citations 
omitted). Thus, the Majority must give a rational explanation for the 
new rule, and it must also give a rational explanation for the decision 
to make the change and reject the facts and circumstances underlying 
the old rule.
    I first dispute the Majority's contention that the new rule will 
more accurately measure employee choice. The most accurate way to 
measure whether a majority of a craft or class affirmatively desires 
representation is to require that a majority of eligible voters vote in 
favor of representation. Anything short of this does not determine 
whether a majority of voters truly desires to change the status quo. As 
the National Railway Labor Conference (NRLC) stated in its comment, 
``there is no evidence for the assumption that any significant 
percentage of employees who do not vote do so because of reasons other 
than a desire to maintain the status quo.'' The Board has very clear 
voting instructions, and there is no evidence employees are unable to 
understand that a failure to vote is not an affirmative vote for 
representation. As aptly stated in 2003 by the Air Line Pilots 
Association (ALPA) in response to the Board's request for comments on 
the implementation of Telephone Electronic Voting (TEV), ``the Board's 
successful balloting process * * * allows a voter to effectively cast a 
vote against any and all representation by simply not submitting a 
ballot.'' (Emphasis in original)
    The Majority claims that this rule does not accurately measure the 
intent of those who do not vote because of illness, travel, religious 
reasons, apathy, or a desire to abstain from voting. The plight of 
those who are unable to vote due to illness, travel, or religious 
objections is of equal concern under either voting rule and does not 
support a rule change. For example, in an election under the new rule 
if a majority of votes cast are for ``no union,'' a religious objector 
who prefers representation but could not vote in the election would be 
just as disenfranchised under the new rule as he or she hypothetically 
would be under the current rule.\5\ The same is true for someone who is 
unable to vote because of illness or travel.\6\ The argument made by 
several commenters that the new rule is better because it is 
appropriate to assume those who do not vote wish to ``acquiesce in the 
will of the majority'' simply does not apply to individuals who are 
somehow prevented from voting even though they may have a preference in 
the election. Thus, the new rule is no better measure of the intent of 
these individuals, and these hypotheticals do not provide a rational 
basis for the new rule. As for those who do not vote due to apathy or a 
desire to abstain from voting, their votes are appropriately measured 
as not affirmatively desiring a change in the status quo.\7\ Moreover, 
the current rule

[[Page 26085]]

is a much better measure of the intent of non-voters than the new 
rule.\8\ Under the current system, the NMB, unions, and often carriers 
spend a great deal of time and resources making sure employees know 
exactly what it means if they do not vote. Thus, when an employee 
chooses not to vote under the current rule, there is far more certainty 
of his or her intent than there will be under the new rule. The new 
rule does not provide a better measurement of the intent of those who 
do not vote, and the Majority has not sufficiently supported this 
rationale.
---------------------------------------------------------------------------

    \5\ Although I am sympathetic--under either rule--to the 
argument that there are employees who may not be able to vote due to 
religious reasons, we received only anecdotal, second-hand accounts 
that this occurs, and there is no evidence it is widespread. In the 
rare case where someone is unable to vote due to religious 
objections, surely the Board could find a way to accommodate these 
employees without changing an important 75-year-old rule that serves 
a critical function in carrying out the Board's statutory mandate.
    \6\ I also note that concerns about inability to vote due to 
travel or illness are purely speculative. The Board always allows at 
least three weeks (and frequently longer) for voting to take place. 
Employees are able to vote (or not vote) from a telephone or 
computer anywhere in the world. There is no evidence in the record 
that travel or illness is preventing anyone from expressing choice 
under the NMB's current rule.
    \7\ As discussed below, in addition to providing a good measure 
of intent, requiring affirmative votes for representation plays an 
important role under the RLA. Requiring everyone who wants a change 
in the status quo to register an affirmative vote ensures true 
majority support for certified representatives and furthers the 
RLA's statutory mandate of maintaining labor stability. The 
interests of apathy or a theoretical ``right'' to abstain from 
voting--mentioned nowhere in the RLA--cannot possibly trump the 
explicitly articulated statutory mandate of avoiding interruptions 
to commerce, which is best served by the current rule.
    \8\ The analogy to political elections made by some commenters 
in favor of the rule is misplaced. As several opposing commenters 
noted, union elections under the NMB often address the threshold 
question of whether there is to be representation at all. That 
question is already settled in political elections. Moreover, 
elected officials stand for re-election after a set period of years. 
Clearly no such re-certification requirement applies to unions. 
Quite the contrary, once they have been elected, Board procedures 
make it extremely difficult for unions to be removed. Quorum 
requirements, cited by several commenters, including NRLC, labor and 
employment law firm Littler Mendelson, P.C. (Littler), and Watco 
Companies, Inc. and Genesee & Wyoming, Inc. (Watco), are also 
prevalent in voting procedures around the world and provide the more 
appropriate analogy in the RLA context where it is particularly 
important to ensure that a small faction does not dictate the 
outcome of the elections. The issue of decertification and the 
importance of true majority support under the RLA are discussed more 
fully later in my dissent.
---------------------------------------------------------------------------

    Even assuming the new rule provides a better measurement of 
employee intent than the current rule, the Majority has failed to 
articulate any valid reason for making this arbitrary change at this 
time. To be sure, ``an agency must be given ample latitude to `adapt 
their rules and policies to the demands of changing circumstances.' '' 
State Farm, 463 U.S. at 41 (internal citation omitted, emphasis added). 
However, this assumes some changed circumstances underlie the 
rulemaking. As discussed above, an agency must articulate and support a 
rational basis for making a change. The Board articulated its rationale 
for the current rule 60 years ago (see Sixteenth Annual Report, 
discussed below) and has consistently confirmed it ever since, 
including as recently as 2008. Delta Air Lines, Inc., 35 NMB 129, 132 
(2008). Moreover, the Board has never before expressed concern about 
whether the current rule provides a sufficient measurement of employee 
choice. To the contrary, the manner in which the NMB has conducted 
elections has for 75 years been considered an excellent method of 
measuring employee choice. As the Supreme Court stated in Brotherhood 
of Railway and Steamship Clerks v. Ass'n for the Benefit of Non-
Contract Employees, (ABNE), ``the fair and equitable manner in which 
the Board has discharged its difficult function is attested by the 
admirable results it has attained.'' 380 U.S. 650, 668 (1965). In the 
words of ALPA in its 2003 TEV comments, ``[t]he Board's balloting 
procedures are well-established, time-tested and should be 
maintained.'' ALPA also described the Board's election history as 
``balanced and successful.'' As recently as 2008, the Board rejected a 
request to change its voting procedures and affirmed its reliance on 
the Chamber of Commerce decision discussed below. Delta Air Lines, 35 
NMB at 132.
    What, then, has caused the Board to suddenly decide that the new 
rule is better than the old rule? The Majority does not offer any 
changed circumstances or any explanation whatsoever for why employee 
choice is now a dispositive concern when it was not as recently as 
2008. Courts have found arbitrary and capricious an agency's reversal 
where it has recently affirmed its previous policy and provided no 
reasons for the timing of the change. See MCI Worldcom, Inc. v. Gen. 
Serv. Admin., 163 F.Supp.2d 28 (D.DC 2001) (holding that the agency's 
actions were arbitrary and capricious when it changed a policy two 
years after assuring the parties that it would not be making that 
change). Without any explanation for the newfound concern for employee 
choice, our constituents are left to draw unattractive inferences 
involving a shift in political power and the imminence of several large 
representation elections--the only circumstances that have changed at 
the Board since the current election rule was definitively articulated 
in 1985 and last upheld in 2008.
    Not only has the Majority failed to explain the timing of the rule 
change, it has also failed to provide ``a reasoned explanation * * * 
for disregarding facts and circumstances that underlay or were 
engendered by the prior policy,'' as required by Fox. 129 S. Ct. at 
1811. In dismissing its obligation to explain its rejection of the 
Board's rationale for the current rule, the Majority argues essentially 
that the Board had no rationale, relying on an early annual report 
suggesting the Board adopted the current rule based on what the Board 
deemed best ``from an administration point of view.'' The Majority also 
cites some commenters' speculation that the rule was initially a 
reaction to widespread company unionism. The Majority's reliance on 
these ``justifications'' is disingenuous. As the Majority knows, the 
Board has long viewed its current election procedure as necessary to 
carry out the Board's statutory mandate of maintaining stable labor 
relations in the airline and railroad industries. The primary purpose 
of the RLA is ``to avoid any interruption to commerce or to the 
operation of any carrier engaged therein.'' 29 U.S.C. Sec.  151a(1). 
The Board first recognized that its current election rule was essential 
to carrying out this statutory duty in its Sixteenth Annual Report:

    In conducting representation elections the Board has for many 
years followed a policy of declining to certify a representative in 
cases where less than a majority of the eligible voters participated 
by casting valid ballots. This policy is based on Section 2, Fourth 
of the act which provides that ``the majority of any craft or class 
of employees shall have the right to determine who shall be the 
representatives of the craft or class.'' These provisions appear to 
fully support the Board in declining certifications in cases where 
only a minority of the eligible employees participates in elections. 
* * *
    Under the Railway Labor Act it is the primary duty of carriers 
and employees ``to exert every reasonable effort to make and 
maintain agreements concerning rates of pay, rules, and working 
conditions and to settle all disputes * * * in order to avoid any 
interruptions to commerce or to the operation of any carrier growing 
out of any dispute between the carrier and the employees thereof.'' 
The Board is of the opinion that this duty can more readily be 
fulfilled and stable relations maintained by a requirement that a 
majority of eligible employees cast valid ballots in elections 
conducted under the act before certifications of employee 
representatives are issued.

16 NMB Ann. Rep. 20 (1950).

    This rationale has been repeatedly affirmed in the Board's Annual 
Reports. Chamber of Commerce, 14 NMB at 355 (citing the NMB's 44th 
through 49th Annual Reports). Most significantly, the Board's rationale 
was emphatically articulated in 1986 when, after receiving competing 
requests to change its voting rules, the Board engaged in an extensive 
fact-finding process involving live testimony, cross examination of 
witnesses, and a period for comment. Chamber of Commerce, 13 NMB 90 
(1986). Subsequently, the Board issued a decision affirming the current 
rule and providing a further discussion of the reasons for the rule:

    One need look no further than to the area of potential strikes 
to conclude that certification based upon majority participation 
promotes harmonious labor relations. A union without majority 
support cannot be as effective in negotiations as a

[[Page 26086]]

union selected by a process which assures that a majority of 
employees desire representation. * * * * *
    The level of proof required to convince the Board the changes 
proposed are essential is quite high, and has not been met. The IBT 
proposals would render Board election procedures similar to those of 
the National Labor Relations Board. Yet the degree of organization 
among employees covered by the Railway Labor Act is significantly 
higher than that among employees covered by the NLRA. This fact is 
one of many factors which persuade the Board that it should not 
alter its current representation election procedures.

Chamber of Commerce, 14 NMB at 362-363.

    This labor stability rationale--definitively laid out after 
extensive fact-finding in the Chamber of Commerce decision--is the 
relevant yardstick against which the sufficiency of the Majority's 
justification for the rule change must be measured. There can be no 
doubt that the reason for the Board's current election rule is to 
effectuate the Board's mandate to maintain stability in the airline and 
railroad industries, not hypothetical past concerns about company 
unionism or mere administrative convenience.
    The Majority dismisses concerns about labor stability, stating that 
these concerns are ``mere speculation'' and that stability is related 
only to the existence of collective bargaining agreements and the 
Board's mediation function. Thus, the Majority argues--incredibly--that 
every Board over the last 60 years has simply been wrong. Unfortunately 
for the Majority, they cannot ignore the past findings of the Board 
merely because they are ``inconvenient.'' Fox, 129 S. Ct. at 1824 
(Kennedy, J., concurring). The conclusions in the Chamber of Commerce 
decision that the duty to make and maintain collective bargaining 
agreements ``can be more readily fulfilled and stable relations 
maintained by a requirement that a majority of eligible employees cast 
valid ballots'' and that ``a union without majority support cannot be 
as effective in negotiations as a union selected by a process which 
assures that a majority of employees desire representation'' were 
upheld after extensive fact-finding. Moreover, the record of this 
rulemaking contains several comments supporting these findings based on 
the wide-ranging experience of commenters such as Union Pacific 
Railroad Company (UP), TTX Company (TTX), Watco, NRLC, Littler, the 
National Air Transportation Association's Airline Services Council 
(ASC), the Cargo Airline Association (CAA), and the Regional Airline 
Association (RAA). The primary statutory goal of the RLA--``to avoid 
any interruption to commerce or to the operation of any carrier engaged 
therein''--is the very first item mentioned in the general purposes 
section of the act and is not limited to the Board's mediation 
function. Indeed, there are several examples of distinctive practices 
the Board employs outside of the mediation function in recognition and 
furtherance of the goal of avoiding labor unrest. For example, unions 
under the RLA must organize across an entire transportation system 
\9\--often over enormously wide geographic areas including large 
numbers of people. This requirement to organize system-wide crafts or 
classes clearly serves the goal of labor stability. See Charles Rhemus, 
The National Mediation Board at Fifty, 16 (1985) (``The system-wide 
bargaining units * * * are essential to stability and continuity of 
service in both transportation modes.''). Moreover, the NMB requires a 
higher showing of interest--more than 50 percent of the craft or 
class--to challenge an incumbent. This is contrasted with a 30 percent 
requirement at the National Labor Relations Board (NLRB). The Majority 
itself emphasizes the role of this representation rule in maintaining 
labor stability. In rejecting calls to reduce the showing of interest 
requirement, the Majority states: ``[T]he Board must also foster 
stability in collective bargaining relationships to maintain industrial 
peace.'' The Majority also states ``[i]n the Board's view, maintaining 
the higher showing of interest requirement for crafts or classes that 
are already represented will prevent the types of disruptions in 
representation that several commenters express concern about.'' Thus, 
the Majority is happy to acknowledge the stabilizing role of 
representation procedures when it suits its purposes, but summarily 
dismisses it when it is ``inconvenient.''
---------------------------------------------------------------------------

    \9\ It is well settled that the Board applies the term ``craft 
or class'' under the RLA on a system-wide basis. Delta Air Lines 
Global Servs., 28 NMB 456, 460 (2001); American Eagle Airlines, 28 
NMB 371, 381 (2001); American Airlines, 19 NMB 113, 126 (1991); 
America West Airlines, Inc., 16 NMB 135, 141 (1989); Houston Belt & 
Terminal Railway, 2 NMB 226 (1952).
---------------------------------------------------------------------------

    Additionally, the Majority has missed the point on several of the 
labor stability arguments. In dismissing the labor stability issue, the 
Majority focuses on authorized work stoppages as the sole source of 
instability. However, several commenters expressed concerns that unions 
without true majority support will (1) have more difficulty ratifying 
agreements made in collective bargaining; (2) be more susceptible to 
organizing drives; \10\ and (3) be unable to prevent unauthorized work 
stoppages by a membership that does not feel allegiance to the 
certified representative.\11\ The Majority did not adequately address 
the disruptions to the public, employees, unions, and carriers caused 
by these specific issues, even in the absence of an authorized work 
stoppage. In particular, the rule's preamble is completely silent on 
whether it would be more difficult for a union without true majority 
support to prevent unauthorized work stoppages. This failure is clear 
evidence of the arbitrary and capricious nature of this rulemaking. See 
State Farm, 463 U.S. at 43 (``Normally an agency rule would be 
arbitrary and capricious if the agency has * * * entirely failed to 
consider an important aspect of the problem * * *'').
---------------------------------------------------------------------------

    \10\ The Majority states that the concerns about union raiding 
are misplaced because the showing of interest requirements will 
remain the same. This ignores the fact that, regardless of the 
showing of interest requirements, a weak union is more likely to 
face organizing drives which, according to several commenters, are 
in and of themselves disruptive.
    \11\ These commenters include, RAA, UP, TTX, Watco, NRLC, 
Littler, ASC, and CAA. With regard to work stoppages, the Majority 
cites a commenter's claim that a weak union is less likely to win a 
strike vote for a union-approved work stoppage. The Majority also 
cites the Board's mediation function as the Board's primary 
protection against strikes. These points totally ignore the question 
of a weak union's inability to prevent unauthorized work stoppages. 
Neither a failed strike vote nor the Board's mediation function 
addresses this type of interruption.
---------------------------------------------------------------------------

    In summary, the Majority has not provided a rational explanation 
for its new rule, the timing of the rule change or the rejection of the 
facts and circumstances underlying the current rule.

Decertification

    My colleagues' failure to seek comment on or incorporate a 
decertification provision is further evidence that the Majority's 
action is biased and does not meet the APA's arbitrary and capricious 
standard. If the Board is going to elevate the cause of measuring 
employee intent above all else in order to overturn its longstanding 
election rules, those same interests--as well as basic fairness--
dictate that the Board must give employees a clear means of choosing 
not to be represented. The Majority dismisses arguments regarding 
decertification, asserting only that the current ``procedure'' is 
sufficient. Given that the stated purpose of the rule change is to 
``more accurately measure employee choice,'' the Majority's position on 
decertification strains credulity. The most confusing and

[[Page 26087]]

obfuscatory practice in all of the Board's representation procedures is 
the Board's convoluted decertification process. This process, not the 
current voting rule, is clearly the biggest obstacle to employee 
expression of choice under the RLA. Under the current decertification 
procedure, employees who no longer wish to be represented by a union 
must select an individual to stand for election (the so-called ``straw 
man''), convince a majority of the eligible voters in the craft or 
class to sign authorization cards for that individual (while attempting 
to explain that this individual is not actually going to represent 
them), and then file an application with the Board. If the requisite 
showing of interest is met, an election is authorized, and the 
employees must either vote for the ``straw man,'' with the hope that he 
will later disclaim interest in representing the craft or class, or 
abstain from voting.\12\ The Majority not only ignores the obvious 
burdens this process places on employee free choice but also claims the 
new rule will make this procedure more direct by allowing employees to 
vote ``no union'' in these circumstances. To the contrary, adding the 
``no union'' option to the ballot without removing the straw man 
requirement will only make the procedure more confusing. Employees will 
be faced with a ballot that has both the name of the straw man and the 
``no union'' option. Some employees desiring ``no union'' will think 
they should vote for the straw man--since that is the name for whom 
they signed an authorization card--and some will vote for ``no union.'' 
Yet these vote counts will not be consolidated in favor of 
decertification--to the contrary, the union will be decertified only if 
one of these options receives a majority of the votes cast--an outcome 
made less likely by the Majority's new rule.
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    \12\ Incidentally, the ``straw man'' also has to explain to the 
voters that in this particular election, a vote for the straw man is 
actually a vote ``for representation'' and will effectively be 
considered a vote for the incumbent if the incumbent receives a 
majority of the votes cast. This problem would not be solved under 
the new rule because, as discussed later, without eliminating the 
straw man requirement, the addition of a ``no union'' option on the 
ballot will actually make things more confusing for employees.
---------------------------------------------------------------------------

    The Majority's insistence that the current procedure is sufficient 
and its refusal to request a full briefing on the issue are mystifying. 
If my colleagues are truly interested in protecting employee free 
choice, they should eliminate the straw man and give employees a clear 
process for expressing their choice for no representation. I can only 
conclude that my colleagues do not really desire to know employees' 
true intent when it comes to decertification. Apparently, employee 
choice only matters to the Majority when it relates to changing the 
status quo from no representation to representation and not the other 
way around. This unprincipled approach further demonstrates that the 
rule change lacks a rational basis and violates the APA.
    The bias against allowing employees to choose to be unrepresented 
also violates the body of law surrounding the right to choose to be 
unrepresented under the RLA. There is no dispute that employees have 
the right to reject a bargaining representative. The legislative 
history of the Act supports this view. ABNE, 380 U.S. at 669 n. 5 
(1965). In International Brotherhood of Teamsters v. Brotherhood of 
Railway, Airline & Steamship Clerks, 402 F.2d 196 (DC Cir. 1968) 
(BRAC), the court rejected the contention that the Board's statutory 
authority is limited to certifying unions. Citing ABNE, the court 
stated:

[this] argument does not and cannot vault over the hurdle erected by 
the Supreme Court's decision in [ABNE]. There the Supreme Court 
indicated that employees under the Railway Labor Act were to have 
the option of rejecting collective representation entirely. The 
decision precludes a ruling that the board's sole power is to 
certify someone or group as an employee representative, imposing on 
the carrier a duty to treat with that representative. We think that 
the Board has the power to certify to the carrier that a particular 
group of employees has no representative to carry on the 
negotiations contemplated by the Railway Labor Act, thereby 
relegating the carrier and its employees to employment relationships 
and contracts not presently governed by the Railway Labor Act.

Id. at 202 (citation omitted). See also Russell v. NMB, 714 F.2d 1332 
(5th Cir. 1983).

    Even my colleagues acknowledge that employees have the right under 
the Act to be unrepresented. Thus, I cannot understand their 
unwillingness to respond to the requests and comments seeking a direct 
procedure for employees to exercise that right. Instead, the new rule, 
together with the tortuous straw man decertification process, creates a 
scheme under which a union may be certified with far less than majority 
support and yet employees cannot decertify without overcoming the 
confusion inherent in the process and gathering authorization cards 
from a majority of the eligible voters--a requirement far more onerous 
than was required to certify the union in the first place.\13\ This 
imbalance creates a preference for representation that infringes on the 
rights made clear by the courts in their decisions in ABNE, BRAC, and 
Russell.
---------------------------------------------------------------------------

    \13\ The Majority insists the showing of interest to trigger a 
straw man decertification election must remain at over 50 percent of 
eligible voters. In light of the rule change allowing a union to be 
certified on the basis of a majority of ballots cast, the Majority 
should adjust the showing of interest requirements for employees who 
desire to be unrepresented. If, as the Majority suggests, the labor 
stability rationale does not support keeping the current election 
rule, the Majority should not be able to argue it necessitates 
keeping the current showing of interest requirements. The 
combination of the rule change and the failure to adjust the showing 
of interest places the rights of unions ahead of the rights of 
employees.
---------------------------------------------------------------------------

Run-Off Procedures

    Additional imbalance is created by the Majority's position on run-
off procedures in the wake of the rule change. The Majority cites with 
approval commenters who argue the rule change is appropriate to conform 
to procedures utilized by the NLRB ``so all employees under private-
sector labor law will be subject to uniform representation election 
procedures.'' In adjusting the Board's run-off procedures, however, the 
Majority rejects the NLRB's approach. At the NLRB, after an election 
conducted with the ``majority of votes cast'' standard, if no single 
ballot option receives a majority of the votes cast, and the ``no 
union'' option receives one of the two highest numbers of votes, the 
run-off is between the ``no union'' option and the entity with the 
other highest number of votes. Under the current NMB procedures, if a 
majority of eligible voters vote for representation, a run-off election 
is held between the two unions with the highest numbers of votes, and 
the union receiving the majority of the votes cast will be certified. 
Without the certainty that a majority of eligible voters desire 
representation, the Board would not currently hold the run-off between 
two unions. Under the new rule, a ``no union'' option would be added to 
the ballot for the initial election, but if no ballot option receives a 
majority of votes cast, the Majority would allow a run-off election 
only between the two organizations receiving the highest number of 
votes. In the run-off election, there would never be a ``no union'' 
option, and the union with the majority of the votes cast would be 
certified. This would be the case even if the two organizations on the 
ballot did not receive votes from a majority of eligible voters in the 
initial election. Thus, even though the new rule removes the certainty 
in the initial election that a majority of the craft or class desires 
representation, the only choice the employees will have in the run-off 
election will be for

[[Page 26088]]

representation. Consider the example of an election with 500 employees. 
On the ballot are Union A, Union B and ``no union.'' Union A receives 
50 votes, Union B receives 175 votes and ``no union'' receives 200 
votes. In spite of the fact that ``no union'' received more votes than 
Union A or B, and in spite of the fact that fewer than half of the 
eligible employees voted for representation, the only choice the 
employees will have in the run-off election will be between Unions A 
and B. It is impossible to see how this serves the Majority's stated 
goal of better measuring employee intent. Moreover, it is perplexing 
that the Majority would choose to follow the analogy of the NLRB in 
changing the voting rule and yet reject it in this instance. As with 
its opportunistically inconsistent positions in the areas of showing of 
interest and decertification, this is another example of the Majority 
relying on justifications and analogies when they support procedures 
that facilitate representation and eschewing them when they support an 
employee's right to be unrepresented.

Write In Option

    The Majority's discussion of election interference remedies 
mentions that the new ballot effectuating its rule change will include 
a write-in option in addition to the yes/no options. This casual 
reference--made for the first time near the end of the rule's lengthy 
preamble--is the only place the Majority has indicated any intention to 
add a write-in option to the yes/no ballot. Neither the NLRB ballot nor 
the NMB's Laker ballot has a write-in option. The NPRM did not raise 
the possibility that the new ballot would have a write-in option and 
thus differ from the NLRB or Laker ballot. Not surprisingly, therefore, 
none of the commenters discussed the impact of adding a write-in option 
to the yes/no ballot. In fact, several commenters made references to 
both the NLRB ballot and the Laker ballot, demonstrating that 
commenters believed the ballot would have only yes/no options.
    Because the Board neither sought nor received comments on the 
write-in option, we have had no opportunity to hear or consider the 
possible consequences of having both the yes/no options and a write-in 
option on the ballot. Assuming some voters will use the write-in 
option, its inclusion could affect the outcomes of elections under the 
revised rule. Thus, it is a substantive change that should have been 
aired in the notice-and-comment process. Including the write-in option 
on the ballot without including it in the rule text and without seeking 
comment on it is a clear violation of the APA and further evidence this 
rule is fatally flawed. See Small Refiner Lead Phase-Down Task Force v. 
E.P.A. 705 F.2d 506, 549 (DC Cir. 1983) (``Agency notice must describe 
the range of alternatives being considered with reasonable specificity. 
Otherwise, interested parties will not know what to comment on, and 
notice will not lead to better-informed agency decisionmaking.''). 
Moreover, without another round of notice and comment, this rulemaking 
violates the ``logical outgrowth test'' because ``interested parties 
could not reasonably have `anticipated the final rulemaking from the 
draft [rule].' '' American Water Works Ass'n v. EPA, 40 F.3d 1266 (DC 
Cir. 1994) (quoting Anne Arundel County v. EPA, 963 F.2d 412, 418 (DC 
Cir. 1992).
    This APA violation is not cured by the Majority's claim that it is 
merely maintaining the Board's long-standing practices of providing a 
write-in option and counting write-in votes as votes for 
representation. Both of these practices are inextricably intertwined 
with other elements of the current ballot and voting procedures, such 
as the absence of a ``no union'' option and the requirement that a 
majority of eligible voters vote in favor of representation. The 
decision to change the latter features necessarily calls into question 
the former. In light of the fundamental transformation of the Board's 
ballot and voting procedures at issue in this rulemaking, interested 
parties could not have anticipated--and did not anticipate--that the 
Majority would add the write-in components to its new framework.
    In conclusion, the rule change my colleagues are implementing is an 
unprecedented departure for the NMB and represents the most dramatic 
policy shift in the history of the agency. Against this backdrop, the 
Board should have proceeded with the utmost caution and relied only on 
the most settled and profound need for making such a change. Instead, 
the Majority has engaged in a rulemaking process that is procedurally 
and substantively flawed, harmful to the agency, and lacks sufficient 
justification.
    Consequently, I strongly disagree with its decision to make this 
change.

    Chairman Elizabeth Dougherty.

Paperwork Reduction Act

    This rule does not contain information collection requirements that 
require approval by the Office of Management and Budget under the 
Paperwork Reduction Act (44 U.S.C. 3507 et seq.).

Regulatory Flexibility Act

    The NMB certifies that this rule will not have a significant impact 
on a substantial number of small entities under the Regulatory 
Flexibility Act (5 U.S.C. 601 et seq.). The rule affects only the 
Board's election process and the method used by the Board to determine 
the outcome of a self-organization vote by employees. The rule will not 
directly affect any small entities as defined under the Regulatory 
Flexibility Act.

National Environmental Policy Act

    This rule will not have any significant impact on the quality of 
the human environment under the National Environmental Policy Act (42 
U.S.C. 4321 et seq.).

List of Subjects in 29 CFR Parts 1202 and 1206

    Air carriers, Labor management relations, Labor unions, Railroads.

0
Accordingly, for the reasons discussed in the preamble, the NMB amends 
29 CFR chapter X as follows:

PART 1202--RULES OF PROCEDURE

0
1. The authority citation for 29 CFR part 1202 continues to read as 
follows:

    Authority: 44 Stat. 577, as amended; 45 U.S.C. 151-163.

0
2. Section 1202.4 is revised to read as follows:

Sec.  1202.4  Secret ballot.

    In conducting such investigation, the Board is authorized to take a 
secret ballot of the employees involved, or to utilize any other 
appropriate method of ascertaining the names of their duly designated 
and authorized representatives in such manner as shall insure the 
choice of representatives by the employees without interference, 
influence, or coercion exercised by the carrier. Except in unusual or 
extraordinary circumstances, in a secret ballot the Board shall 
determine the choice of representative based on the majority of valid 
ballots cast.

PART 1206-HANDLING REPRESENTATION DISPUTES UNDER THE RAILWAY LABOR 
ACT

0
3. The authority citation for 29 CFR part 1206 continues to read as 
follows:

    Authority: 44 Stat. 577, as amended; 45 U.S.C. 151-163.

Sec.  1206.4  [Amended]

0
4. Amend Sec.  1206.4(b)(1) by removing the phrase ``less than a 
majority of eligible voters participated in the election'' and by 
adding in its place the

[[Page 26089]]

phrase ``less than a majority of valid ballots cast were for 
representation.''

    Dated: May 5, 2010.
Mary Johnson,
General Counsel, National Mediation Board.
[FR Doc. 2010-11026 Filed 5-10-10; 8:45 am]
BILLING CODE 7550-01-P
```