Pro-Union Rail and Air Transport Voting Rule Upheld

The National Mediation Board’s new union election rule making it easier for unions in the rail and air transport industries to organize workers does not violate federal labor law, the D.C. Circuit Court of Appeals has held in a 2-1 decision. Air Transport Association of America, Inc. v. National Mediation Board, et al., No. 10-5253 (D.C. Cir. Dec. 16, 2011). The decision overturns 75 years of precedent and is subject to appeal.

Similar to the method used in other industries under the National Labor Relations Act (“NLRA”), under the new NMB rule, unions for the rail and air transport industries need receive only a majority of the votes cast, rather than a majority of votes from eligible voters in the craft or class, in order to be certified as the exclusive bargaining representative under the Railway Labor Act (“RLA”).

The NMB rule has broad pro-union implications for employers in the rail and air transportation industry. Unlike industries governed by the NLRA, where elections are held and representatives typically certified on a single location basis, representatives in railways and airlines typically are certified by the NMB under the RLA on a nationwide or companywide basis, e.g., all pilots in the U.S. working for a certain airline are in a large, single bargaining unit.

Moreover, unlike procedures under the NLRA where a decertification election will be called if at least 30 percent of the employees in the unit petition for decertification, in the railways and airlines, once a union is elected under the new rule by only a majority of the votes cast, the NMB will not call for a decertification election unless and until more than 50 percent of the employees in the nationwide and companywide bargaining unit petition for a decertification election.

Railway and airline employers should consider educating their employees on the importance of voting in a representation election and the long-term implications of union certification in light of the new pro-union election rule.

Jackson Lewis attorneys are available to discuss the new rule.