For the second time, the Air Transport Association has filed in US District Court to overturn the change in union voting imposed by the National Mediation Board. The organisation said the change was not only arbitrary and capricious but ignored the NMB’s earlier interpretation saying that only Congress could change the rule. It also challenged the legality of how the rule was initially published as a Notice of Proposed Rule Making, saying it was illegal.
The change overturned 75-years of labour law and NMB’s practices that issued representation ballots with only one choice – to elect the union to represent it in collective bargaining. Instructions were given those who did not want a union to not vote with the outcome determined on whether a majority of all those in the class or craft favoured union certification.
The rule change asserted that no matter how many participated in the vote, the outcome was determined by only those actually voting. In changing the rule, the NMB argued that Section 1, four, did not address all the issues and the change was a matter of filling those gaps including the failure to specify the majority holds the right to make representation determinations. The Board also re-interpreted the intent of non-voters, saying their failure to vote only meant they were “acquiescing in the will of the voting majority”. Interesting, given 75 years of history instructing those who opposed union representation not to vote.
ATA argues that the Supreme Court has settled that law. It “has recognised that the statute unambiguously gives the majority that right".
“But the statute’s meaning is plain,” said ATA. “To ‘determine’ an outcome requires a formal or authoritative declaration – not just silence. The Board’s reliance on the National Labor Relations Board’s practice of certifying unions based on a majority of votes is misplaced given the differences between the RLA and the National Labor Relations Act of 1935. In addition, the individual appellants contend that the Board’s new voting rule is impermissible because it violates their rights to free association under the First Amendment to the US Constitution.”
The organisation also questions the fact the NMB never explained how the new methodology provides more accuracy in elections nor did provide a reasonable explanation its action. The board had required the “compelling-reasons” standard under which the Board will not make a significant change to the voting rules unless the rule change is mandated by the RLA or essential to administering the statute.
“Despite having repeatedly rejected, under this standard, the argument that the majority-of-votes-cast rule would more accurately measure employee intent, the Board has now adopted that rule solely on the ground that it allegedly will more accurately determine employee preference,” said ATA.
It also noted that one member of the three-member board was never given the chance to review the NPRM before it was published and then didn’t allow that member to voice objections frankly after belatedly reviewing the document.