[Federal Register Volume 77, Number 94 (Tuesday, May 15, 2012)]
[Proposed Rules]
[Pages 28536-28538]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2012-11770]
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NATIONAL MEDIATION BOARD
29 CFR Part 1206
[Docket No. C-7034]
RIN 3140-ZA01
Representation Procedures and Rulemaking Authority
AGENCY: National Mediation Board.
ACTION: Proposed rule with request for comments.
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SUMMARY: This proposal amends the National Mediation Board's (NMB or
Board) existing rules for handling representation disputes to
incorporate statutory language added to or amending the Railway Labor
Act (RLA) by the Federal Aviation Administration Modernization and
Reform Act of 2012. This document proposes changes to the existing
regulations pertaining to run-off elections, showing of interest for
representation elections, and the NMB's rulemaking proceedings.
DATES: The NMB will accept written comments that are received on or
before July 16, 2012.
ADDRESSES: You may submit comments identified by Docket Number C-7034
by any of the following methods:
Federal eRulemaking Portal: http://www.regulations.gov.
Follow the instructions for submitting comments.
Agency Web Site: www.nmb.gov. Follow the instructions for
submitting comments.
Email: [email protected]. Include docket number in the subject
line of the message.
Fax: (202) 692-5085.
Mail and Hand Delivery: National Mediation Board, 1301 K
Street NW., Ste. 250E, Washington, DC 20005.
Instructions: All submissions received must include the agency name
and docket number. All comments received will be posted without change
to www.nmb.gov, including any personal information provided.
Docket: For access to the docket or to read background documents or
comments received, go to www.nmb.gov.
FOR FURTHER INFORMATION CONTACT: Mary Johnson, General Counsel,
National Mediation Board, 202-692-5050, [email protected].
SUPPLEMENTARY INFORMATION: On February 14, 2012, the President signed
the Federal Aviation Administration Modernization and Reform Act of
2012, Public Law 112-095 (FAA Reauthorization) into law. The FAA
Reauthorization contained, inter alia, several amendments to the RLA.
The changes contained in these amendments impact the Board's current
Rules relating to run-off elections, showing of interest requirements,
and rulemaking. These Rules are being revised to comply with the
statutory language. As discussed below, the Board invites commenters to
address specific questions below, along with any other matters they
consider relevant to the changes wrought by the amended statutory
language. The Board is particularly interested in receiving comments
regarding the effect of the amendments on the Board's policies and
practices with respect to representation disputes in mergers. The NMB
may incorporate any comments in a Final Rule in this proceeding. The
NMB will hold an open public hearing during the comment period. A
notice will be published containing the dates of the open public
hearing and related information.
Run-Off Elections
Prior to the enactment of the FAA Reauthorization, under its
previous practice in representation elections, the Board aggregated all
votes cast for representation, including write-in votes.\1\ Where a
majority of employees have cast valid ballots for representation but no
individual or organization received a majority of the ballots cast, the
issue to be determined was which of the individuals or organizations
would be the representative. Thus, the run-off election, once
authorized, would be between the two individuals or organizations that
received the highest number of votes. 29 CFR 1206.1. The amendments to
the RLA now require that the Board no longer aggregate votes for
representation and that any run-off election will be between the two
ballot options that receive the most votes. This can include the ``no''
option.
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\1\ The NMB has a longstanding practice of allowing write-in
votes for representation. 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).
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The Board's Rules also required that a participant initiate a run-
off election with a written request. 29 CFR 1206.1. The amended
language now requires the Board to ``arrange for'' a second election
when no ballot option receives a majority of the ballots cast.
Showing of Interest
Prior to these amendments, the showing of interest requirements
needed to support an application under Section 2, Ninth of the RLA
invoking the Board's services to investigate a representation dispute
among a carrier's
[[Page 28537]]
employees were established by the exercise of the Board's discretion
under Section 2, Ninth, and by the NMB's Rules. 29 CFR 1206.2, 1206.5.
The showing of interest requirements were not defined by statute. The
NMB's Rules provided that an individual or organization needed to
support their application with authorization cards from thirty-five
percent of the craft or class if those employees were unrepresented and
authorization cards from more than fifty percent of the craft or class
if those employees were already represented. 29 CFR 1206.2. An
intervening individual or organization needed a thirty-five percent
showing of interest to get on the ballot. 29 CFR 1206.5. The amended
statutory language provides that a showing of interest of not less than
fifty percent is required to support an ``application requesting that
an organization or individual be certified as the representative of any
craft or class of employees.'' 45 U.S.C. 152, Twelfth.
The amended language is silent with regard to mergers. Courts have
long recognized that the NMB, under Section 2, Ninth, has the authority
to resolve representation disputes arising from a merger involving a
carrier or carriers covered by the RLA. Air Line Employees Ass'n, Int'l
v. Republic Airlines, Inc., 798 F.2d 967 (7th Cir. 1986). An
organization or individual initiates this process by filing an
application supported by evidence of representation or a showing of
interest. After the NMB determines that a single transportation system
exists, the Board's investigation will proceed to address the
representation of the craft or class. The Board's current policy in
mergers requires that ``[i]ncumbent organizations or individuals on the
affected carrier(s) must submit evidence of representation or a showing
of interest from at least thirty-five (35) percent of the employees in
the craft or class.'' NMB Representation Manual (Representation Manual)
Section 19.601.\2\ The Representation Manual further states that the
``rules regarding percentage of valid authorizations in NMB Rule 1206.2
(29 CFR 1206.2) and bar rules in NMB Rule 1206.4 (29 CFR 1206.4) do not
apply to applications'' in merger situations. Representation Manual
Section 19.6. The amended RLA, however, now requires at least a fifty
percent showing of interest for applications to certify a
representation of any craft or class. The Board's merger procedures
include the filing of an application to certify a representative of the
newly merged craft or class. The Board seeks comments regarding the
impact of the amended language on the Board's policies and procedures
with regard to mergers.
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\2\ The Representation Manual is an internal statement of agency
policy and not a compilation of regularly promulgated regulations
having the force and effect of law. Hawaiian Airlines v. NMB, 107
L.R.R.M. 3322 (D. Haw. 1979), aff'd without op. 659 F.2d 1088 (9th
Cir. 1981).
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Rulemaking Authority
The FAA Reauthorization also amends the RLA to specifically provide
rulemaking under the Administrative Procedure Act (APA) with the added
requirement of a hearing in addition to the notice and comment
provisions of Section 553 of the APA.
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 proposed rule affects only
the Board's election process, the method used by the NMB to determine
the outcome of a self-organization vote by employees, and internal NMB
procedures. The proposed rule imposes no requirements upon carriers or
derivative carriers subject to the RLA. The proposed rule would not
directly affect any entities that are small businesses under the
Regulatory Flexibility Act. Accordingly, the National Mediation Board
certifies that it will not have a significant impact on a substantial
number of small entities.
National Environmental Policy Act
This proposal 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 Part 1206
Air carriers, Labor management relations, Labor unions, Railroads.
Accordingly, as set forth in the preamble, the NMB proposes to
amend 29 CFR part 1206 as follows:
PART 1206-HANDLING REPRESENTATION DISPUTES UNDER THE RAILWAY LABOR
ACT
1. The authority citation for part 1206 continues to read as
follows:
Authority: 44 Stat. 577, as amended; 45 U.S.C. 151-163.
2. Section 1206.1 is revised to read as follows:
Sec. 1206.1 Run-off elections.
(a) If in an election among any craft or class no option receives a
majority of the legal votes cast, or in the event of a tie vote, the
Board shall authorize a run-off election.
(b) In the event a run-off election is authorized by the Board, the
names of the two options which received the highest number of votes
cast in the first election shall be placed on the run-off ballot, and
no blank line on which voters may write in the name of any organization
or individual will be provided on the run-off ballot.
(c) Employees who were eligible to vote at the conclusion of the
first election shall be eligible to vote in the run-off election
except:
(1) Those employees whose employment relationship has terminated;
and
(2) Those employees who are no longer employed in the craft or
class.
3. Section 1206.2 is revised to read as follows:
Sec. 1206.2 Percentage of valid authorizations required to determine
existence of a representation dispute.
Upon receipt of an application requesting that an organization or
individual be certified as the representative of any craft or class of
employees, a showing of proved authorizations (checked and verified as
to date, signature, and employment status) from at least fifty (50)
percent of the craft or class must be made before the National
Mediation Board will authorize an election or otherwise determine the
representation desires of the employees under the provisions of section
2, Ninth, of the Railway Labor Act.
4. Section 1206.5 is revised to read as follows:
Sec. 1206.5 Necessary evidence of intervenor's interest in a
representation dispute.
In any representation dispute under the provisions of section 2,
Ninth of the Railway Labor Act, an intervening individual or
organization must produce proved authorizations (checked and verified
as to date, signature, and employment status) from at least fifty (50)
percent of the craft or class of employees involved to warrant placing
the name of the intervenor on the ballot.
5. Section 1206.8 is revised to read as follows:
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Sec. 1206.8 Amendment or rescission of rules in this part.
(a) The Board may at any time amend or rescind any rule or
regulation in this part by following the public rulemaking procedures
under the Administrative Procedure Act (5 U.S.C. 553) and after
providing the opportunity for a public hearing.
(b) The requirements of paragraph (a) of this section shall not
apply to any rule or proposed rule to which the third sentence of
section 553(b) of the Administrative Procedure Act applies.
(c) Any interested person may petition the Board, in writing, for
the issuance, amendment, or repeal of a rule or regulation in this
part. An original and three copies of such petition shall be filed with
the Board in Washington, DC, and shall state the rule or regulation
proposed to be issued, amended, or repealed, together with a statement
of grounds in support of such petition.
Dated: May 10, 2012.
Mary Johnson,
General Counsel, National Mediation Board.
[FR Doc. 2012-11770 Filed 5-14-12; 8:45 am]
BILLING CODE 7550-01-P