[Federal Register Volume 77, Number 94 (Tuesday, May 15, 2012)]
[Proposed Rules]
[Pages 28536-28538]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2012-11770]


=======================================================================
-----------------------------------------------------------------------

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.

-----------------------------------------------------------------------

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: legal@nmb.gov. 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, infoline@nmb.gov.

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.
---------------------------------------------------------------------------

    \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).
---------------------------------------------------------------------------

    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.
---------------------------------------------------------------------------

    \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).
---------------------------------------------------------------------------

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:

[[Page 28538]]

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