The announcement by the National Mediation Board (NMB) on November 3 of a proposed reinterpretation of the Railway Labor Act (RLA) to make it easier for unions to organize may be a harbinger for EFCA, as well. Rather than ask Congress to amend the 75-year-old RLA or follow normal rulemaking procedures, the new, two-person pro-labor majority at NMB (both members are former union officials) proposed the dramatic change by “administrative fiat.” Should EFCA fail in the Senate, we may see the NLRB adopting the same activist approach in the Labor Board elections it administers.

Section 2, Fourth, of the RLA provides “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….” The Supreme Court in Virginian Railways Co. v. System Fed’n, 300 U.S. 515 (1937), stated that the statute “confer[s] the right of determination upon a majority of those eligible to vote” (not a majority of the voters), but is silent as the manner in which that right shall be exercised. The new NMB, however, ignoring 75 years of experience, now proposes to reinterpret the Act and disregard the Supreme Court. It argues that “a majority of those eligible to vote” does not mean what it says, but rather means that only a majority of those voting could decide an RLA election. Thus, only a minority of those eligible to vote could win the day for a union. Does this sound Orwellian?

Let’s take this one step further. Why not dispense with an election altogether? The RLA does not actually compel an election. NMB can use “an election or employ any other appropriate method” for determining majority representation. And, unlike the NLRA, which allows an employer to insist on an election, no such right exists under the RLA. Therefore, the NMB could allow an EFCA-style card check, followed by an EFCA-style bargaining order. 

This possibility is not farfetched. Currently, the NMB does not use a traditional ballot.The ballot it uses does NOT have a box to check that says “No Union”. There is only a “Yes” box. Of course, with the requirement that a majority of eligible voters affirmatively select a bargaining representative, there is no need for an employee to vote “no.”   To oppose union representation, the employee simply need not vote.  That will change if the NMB proposal is adopted.

For logistical reasons involving often widespread electorates, the NMB never uses a voting booth. It uses a mail ballot-type procedure … which of course opens the possibility that ballots can be cast in the presence of a union representative … a critical deficiency also found in the original EFCA proposal. With changes in technology, the NMB now allows voting by telephone and the Internet. Can the NLRB be far behind? And what if an RLA employee no longer wishes to be represented by a union? He is out of luck. There is no procedure for decertification under the RLA.

Critics of the current NMB procedure claim it is unfair to require a majority of employees to vote in favor of union representation. But those same people do not complain that it takes a majority of the employees to de-authorize a union under the NLRA. Is there anything inconsistent there?

Agency members with an activist agenda, whether at the NMB or the NLRB, can craft arguments to avoid clear statutory language, Supreme Court decisions and 75 years of precedent. If these proposed rules are successfully implemented by the NMB, the NLRB may follow suit quickly. Hurry-up ambush elections, union access to company property, equal time at captive audience meetings, access to employee names and addresses before a petition is filed, access to company bulletin boards or Internet — all of this can be accomplished by administrative fiat, rulemaking or decisions without EFCA.

Related Link –Dougherty – Full NMB Dissent