26062 Federal Register / Vol. 75, No. 90 / Tuesday, May 11, 2010 / Rules and Regulations 

language ‘‘Charles D. Wien, Michael H. 

Beker, or Tolsun N. Waddle, 202–622– 

3070 (not a toll-free number).’’ is 

removed and replaced with the language 

‘‘Charles D. Wien or Michael H. Beker, 

202–622–3070 (not a toll-free number).’’. 

LaNita Van Dyke, 

Chief, Publications and Regulations Branch, 

Legal Processing Division, Associate Chief 

Counsel (Procedure and Administration). 

[FR Doc. 2010–11079 Filed 5–10–10; 8:45 am] 

BILLING CODE 4830–01–P 

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. 

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, infoline@nmb.gov. 

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 


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1Professors 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. 

2ATA members American Airlines, Continental 

Airlines, Southwest Airlines, United Airlines, UPS 

Airlines, and US Airways did not join in this 

motion. 

3Both motions may be viewed at the NMB’s Web 

site at http://www.nmb.gov. 

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. 

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). 

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: 

(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 


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26064 Federal Register / Vol. 75, No. 90 / Tuesday, May 11, 2010 / Rules and Regulations 

4ATA’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. 

5Executive 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). 

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 

(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-andcomment 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). 

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 


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Federal Register / Vol. 75, No. 90 / Tuesday, May 11, 2010 / Rules and Regulations 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 


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6ATA 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. 

7A 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. 

8Under 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.’’ 

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 (AirCon), 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.’’ 

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. 

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 


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9Applications 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. 

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

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 wellestablished 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 


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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. 

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. 

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

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 

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 


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12The 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). 

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 collectivebargaining 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. 

14See 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. 

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 

[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

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 


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15TTD 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. 

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

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. § 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.’’ 


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16Sections 556 and 557 of the APA describe 

formal rulemaking procedures, including a trialtype 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. 

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-forall 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 crossexamination 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)). 

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-andcomment 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 


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17The 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). 

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 

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, nonliteral 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

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, 


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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. 

19A 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. 

20On 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. 

21On 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. 

any voter who abstains from voting, for 

any reason, is counted by the Board as 

a vote against representation. 

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 NLRBsponsored 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. 

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 nonvoters 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

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 


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26074 Federal Register / Vol. 75, No. 90 / Tuesday, May 11, 2010 / Rules and Regulations 

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 


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22Commenter 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. 

or how to vote for their preference in an 

election.22

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 nonmanagement 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 


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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. 

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

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 


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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. 

25Minority 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. 

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

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 Boardcertified 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. 

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. 


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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 earlierfiled 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 TaftHartley 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. 


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26Although 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). 

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. 

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 


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27 In its comment, Delta provides similar 

statistics, stating that ‘‘[r]eview of NMB decisions 

reveals that the union success rate in NMBconducted 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).’’ 

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). 

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 Statewide 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 preempt 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 §§ 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 Boardconducted 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

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 


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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 * * * .’’ 

30Under 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. 

31ASC, 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. 

32The 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). 

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. 

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. 

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). 

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 selforganization vote by employees after an 

application has been filed and an 

election has been authorized. 

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: 

(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 runoff 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 


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33Contrary 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. 

34Since 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). 

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

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 postelection 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

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 


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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. 

2That 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. 

3The 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. 

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

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 


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4When, 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. 

5Although 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-yearold 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. 

7As 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 

followed the Chamber of Commerce 

procedures and been mindful of 

appearances relating to the current 

representation landscape. 

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). 

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 


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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. 

8The 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. 

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. 

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, timetested 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. § 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 


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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). 

10The 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. 11These 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. 

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 factfinding 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 wideranging 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.’’ 

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 

***’’). 

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 


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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. 

13The 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. 

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. 

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. 

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 runoff 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 


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26088 Federal Register / Vol. 75, No. 90 / Tuesday, May 11, 2010 / Rules and Regulations 

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 PhaseDown 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. 

■ Accordingly, for the reasons discussed 

in the preamble, the NMB amends 29 

CFR chapter X as follows: 

PART 1202—RULES OF PROCEDURE 

■ 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. 

■ 2. Section 1202.4 is revised to read as 

follows: 

§ 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 

■ 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. 

§ 1206.4 [Amended] 

■ 4. Amend § 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 


jlentini on DSKJ8SOYB1PROD with RULES
Federal Register / Vol. 75, No. 90 / Tuesday, May 11, 2010 / Rules and Regulations 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 

DEPARTMENT OF THE TREASURY 

Fiscal Service 

31 CFR Part 363 

Securities Held in TreasuryDirect 

AGENCY: Bureau of the Public Debt, 

Fiscal Service, Treasury. 

ACTION: Final rule. 

SUMMARY: TreasuryDirect® is an 

account-based, book-entry, online 

system for purchasing, holding, and 

conducting transactions in Treasury 

securities. This final rule benefits 

TreasuryDirect® customers by 

simplifying the procedures for advance 

scheduling of marketable Treasury 

security purchases, enhancing the 

process of scheduling reinvestments of 

marketable Treasury securities, and 

improving the procedures when the 

proceeds of the maturing security are 

insufficient to pay for a new security. 

DATES: Effective Date: May 15, 2010. 

ADDRESSES: You can download this 

Final Rule at the following Internet 

addresses: http:// 

www.publicdebt.treas.gov or http:// 

www.gpoaccess.gov/ecfr. 

FOR FURTHER INFORMATION CONTACT: 

Elisha Whipkey, Director, Division of 

Program Administration, Office of Retail 

Securities, Bureau of the Public Debt, at 

(304) 480–6319 or 

elisha.whipkey@bpd.treas.gov. 

Susan Sharp, Attorney-Adviser, Dean 

Adams, Assistant Chief Counsel, 

Edward Gronseth, Deputy Chief 

Counsel, Office of the Chief Counsel, 

Bureau of the Public Debt, at (304) 480– 

8692 or susan.sharp@bpd.treas.gov>. 

SUPPLEMENTARY INFORMATION: 

TreasuryDirect® is an online, accountbased system for individuals and 

entities to purchase, hold, and conduct 

transactions in eligible Treasury 

securities. This final rule makes changes 

to the procedures for purchasing and 

reinvesting marketable Treasury 

securities. 

TreasuryDirect® currently allows a 

customer to schedule a marketable 

security purchase up to five years in 

advance. Because the auction schedule 

for marketable Treasury securities 

cannot be predicted with certainty that 

far in advance, some scheduled security 

purchases must be canceled when no 

matching security is available at that 

time. This final rule limits the advance 

scheduling of new purchases of 

marketable securities. One day each 

week, marketable securities that are 

scheduled for auction within 8 weeks 

will be made available on the 

TreasuryDirect® Web site for scheduling 

a purchase. These securities are the only 

marketable securities available for 

advance purchase. Marketable security 

purchases scheduled before May 15, 

2010, to take effect after July 9, 2010, 

will be canceled. 

Treasury is streamlining the 

procedures for reinvesting marketable 

Treasury securities purchased and held 

in TreasuryDirect®. Prior to the effective 

date of this rule, a customer was 

required to take several steps to reinvest 

a marketable security. First, the 

customer had to determine the date that 

the security matured, then direct that 

the proceeds of the maturing security be 

used to purchase a certificate of 

indebtedness, and then schedule a new 

purchase to coincide with the maturity 

date of the original security, with the 

payment for the new security being 

made using the redemption proceeds of 

the certificate of indebtedness. Any 

purchase of a marketable security in 

which the payment was made through 

the redemption proceeds of the 

customer’s certificate of indebtedness 

was treated as a reinvestment. The new 

procedure will streamline the 

reinvestment process by permitting the 

customer to schedule automatic 

reinvestments without requiring the 

customer to calculate dates and 

schedule purchases. Reinvestments will 

be limited at any one time to 25 times 

for a 4-week bill, 7 times for a 13-week 

bill, 3 times for a 26-week bill, and once 

for all other marketable security types. 

The customer can schedule a 

reinvestment either at the time of 

purchase or after the security is issued 

into the account. However, the customer 

cannot schedule, edit, or cancel a 

reinvestment when the maturing 

security goes into a closed book period, 

or when a noncompetitive bid for the 

replacement security is no longer 

accepted, whichever comes first. 

Because of the changes made to the 

reinvestment process, any marketable 

security purchase scheduled prior to the 

effective date of this rule, and with an 

effective issue date on or after the 

effective date of this rule (except for 

purchases scheduled to take effect after 

July 9, 2010, which, as noted above, will 

be canceled), will be treated as a new 

purchase, even if the transaction would 

have been treated as a reinvestment 

prior to this rule. 

In addition, the procedure is changing 

whenever there are insufficient funds 

from the maturing security to pay the 

full purchase price of the replacement 

security. Previously, in that event, 

TreasuryDirect® would cancel the 

transaction. This final rule provides 

that, in the event that the proceeds of 

the maturing security are insufficient to 

pay the full purchase price of the 

replacement security, the additional 

amount will be paid by either debiting 

the customer’s primary account at a 

financial institution or by using the 

redemption proceeds from the 

customer’s certificate of indebtedness. 

The source for the additional funds 

depends on how the maturing security 

was acquired. If the maturing security 

was purchased within TreasuryDirect®

prior to the effective date of this rule, or 

purchased after the effective date of this 

rule and the source of the funds to 

purchase the security was a debit from 

a financial institution account, or if the 

maturing security was received through 

a transfer, then the customer’s primary 

account at a financial institution will be 

debited for the additional amount. If 

there are insufficient funds in the 

customer’s primary account at a 

financial institution, the reinvestment 

will be canceled. If the maturing 

security was purchased after the 

effective date of this rule using 

redemption proceeds from the 

customer’s certificate of indebtedness, 

then a redemption from the customer’s 

certificate of indebtedness will be made 

for the additional funds. If the amount 

available for redemption from the 

certificate of indebtedness is insufficient 

to pay the additional amount, the 

reinvestment will be canceled. 

Procedural Requirements 

Executive Order 12866. This rule is 

not a significant regulatory action 

pursuant to Executive Order 12866. 

Administrative Procedure Act (APA). 

Because this rule relates to United 

States securities, which are contracts 

between Treasury and the owner of the 

security, this rule falls within the 

contract exception to the APA, 5 U.S.C. 

553(a)(2). As a result, the notice, public 

comment, and delayed effective date 

provisions of the APA are inapplicable 

to this rule. 

Regulatory Flexibility Act. The 

provisions of the Regulatory Flexibility 

Act, 5 U.S.C. 601 et seq., do not apply 

to this rule because, pursuant to 5 

U.S.C. 553(a)(2), it is not required to be 

issued with notice and opportunity for 

public comment. 


jlentini on DSKJ8SOYB1PROD with RULES