On March 11, 2013, the National Mediation Board (NMB) published a Notice, 40 NMB No. 43, announcing changes to the Board's voting procedures and Representation Manual. Specifically, the Board announced:
- Effective with elections commencing on or after March 25, 2013, voters will cast their vote using one confidential access code, instead of the prior system with two different numbers (a Voter Identification Number (VIN) and a Personal Identification Number (PIN)). The access code will be a randomly generated twelve digit number known only to the voter and the NMB.
- Changes to Sections 3.601 and 19.601 of the Representation Manual, related to the showing of interest requirement for elections.
- A change to the Merger Procedures in Section 19 of the Representation Manual, increasing the amount of time an organization has to make the necessary showing of interest (from 14 to 30 days) following the Board's single transportation system determination.
- An amendment to Representation Manual Section 2.4 requiring carrier "attestation" of the accuracy of the List of Potential Eligible Voters. [In comments to the Final Rule published in December 2012, discussed below, the Board had noted that an AFL-CIO coalition of transportation unions had indicated that the new showing of interest requirement would incentivize carriers to "pad" voting lists with hard-to-reach workers or individuals no longer employed at the company.]
The changes to the showing of interest requirement in Representation Manual Sections 3.601 and 19.601 were mandated by a 2012 amendment to Section 152 of the Railway Labor Act (RLA), requiring that all representation applications be supported by a showing of interest from not less than 50 percent of the employees in the applicable craft or class. Prior to the amendment, NMB procedures required only a 35 percent showing of interest, except in certain circumstances involving raids on existing representatives (which required a greater than 50 percent showing of interest).
In its Final Rule regarding the 2012 RLA amendments, the NMB addressed various comments to its Notice of Proposed Rulemaking from the industry and labor organizations. A coalition of unions argued in favor of maintaining the 35 percent showing of interest for incumbent organizations in newly-created single transportation systems following a merger or other similar corporate transaction. AMFA also sought to maintain the 35 percent showing of interest for intervening organizations, which was opposed by IBT and TWU. The Board rejected all such arguments based on the plain language of the RLA amendment. It did observe that an employee may sign more than one authorization card. In this way, where an incumbent already represents more than 50 percent of the craft or class, an intervenor may collect authorization cards from employees already counted toward the incumbent's showing of interest.
In its Final Rule, the Board also rejected a request from the industry seeking a modification to its Merger Procedures, which maintain existing certifications in effect pending the issuance of a new certification or dismissal. The industry pointed out that, in the event of a merger or similar transaction, the Representation Manual allows a union to continue representing less than a majority of the craft or class. The Board observed that under current legal authority, it may not extinguish a certification on its own initiative or at the carrier's request but, instead, must await an application from an employee or labor organization.
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