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NMB Final Rule regarding decertification of collective bargaining representatives survives union challenge

By Victoria Moran, J.D., M.H.A.

National Mediation Board did not act arbitrarily and capriciously when adopting a two-year period of repose following decertification, and the Final Rule does not violate the Railway Labor Act.

A federal district court in the District of Columbia denied a motion for summary judgment in favor of unions that challenged a Final Rule regarding decertification of unions proposed by the National Mediation Board. The court concluded that the Railway Labor Act does not preclude the new decertification procedures set forth in the Final Rule (84 Fed. Reg. 35,987). Also, the extended two-year period of repose following decertification is the same as the period of repose following certification, the Board’s actions were reasonable, and it adequately considered and responded to public comments. (Transportation Trades Department, AFL-CIO v. National Mediation Board, March 31, 2021, Nichols, C.).

Prior to the adoption of the Final Rule in 2019, decertification of a union was sought through the “straw-man” procedure. To simplify the process, the NMB issued a Final Rule eliminating this procedure and allowing the Board to accept applications seeking decertification directly. The Final Rule also extended the period of repose from one to two years, which is the same period of repose following certification. The unions filed suit arguing that the new decertification procedure violates the Railway Labor Act, and the Board’s actions to extend the post-decertification period of repose were arbitrary and capricious.

Unions have standing to challenge Final Rule. The Board argued that the unions lacked standing to challenge the Final Rule and the Final Rule is lawful. The court concluded the unions have standing to challenge the Final Rule. The court was persuaded by the unions’ reliance on the competitor standing doctrine and noted that while the doctrine has not been applied in the context of union elections, it is applicable in this case. The Final Rule “fundamentally alters the environment in which rival parties . . . defend their concrete interests.” The Final Rule makes the procedure less confusing and eliminates the straw man option. Accordingly, the unions have standing.

Direct decertification not prohibited by RLA. The court next considered whether the Board could hold an election after receiving an application directly seeking decertification. The unions argued that RLA Section 2, Twelfth precludes the Board from holding an election after receiving an application to decertify a representative and highlighted the use of “upon” in Section 2, Ninth discussed in another case where the court found the Board’s actions were limited.

The court disagreed with the unions’ comparison and concluded that Section 2, Twelfth’s plain language means the Board cannot hold an election unless the application is supported by at least half of the employees. Further, while the RLA does not contain a provision for decertification, the Supreme Court has made clear that workers covered by the RLA have the right to decide whether they have any representation at all. Ultimately, the RLA does not unambiguously preclude the method adopted in the Final Rule, and the court deferred to the Board’s statutory interpretation.

Extended period of repose not arbitrary and capricious. Lastly, the court disagreed with the unions when it concluded that the extended period of repose is not arbitrary and capricious. The Final Rule extends the period following decertification to two years, which is the same as the period of repose following certification. The Board explained the reasons for its decision to extend the period, and it provided adequate responses to opponents’ public comments. The Board believes that both certification and decertification are significant and have a substantial impact on employees’ relationship with their employer, and both need an equal opportunity to judge their decision. The court declined to replace the Board’s judgment with its own.