It would be easier for employees in the airline and railroad industries—which traditionally have been something of a haven for U.S. unions representing private sector employees—to decertify their unions under a proposed rule issued Jan. 31 by the National Mediation Board.

“Currently, while employees have the ability to decertify a representative under the RLA, the process to decertify is unnecessarily complex and convoluted,” the board said. “By failing to have in place a straight-forward process for decertification of a representative, the Board is maintaining an unjustifiable hurdle for employees who no longer wish to be represented and failing to fulfill the statutory purpose of `freedom of association among employees.’”

The board proposes eliminating a Railway Labor Act requirement that employees first sign authorization cards for what the NMB called “a straw man” to represent them before a decertification election. The employees are then required in the decertification election to reject both their current union representative and the straw man in favor of no representation, the board said.

“It is NMB’s statutory mandate to protect employees’ freedom to choose a representative. There is, however, no statutory basis for the additional requirement of a straw man where employees seek to become unrepresented,” the board wrote in its summary of the proposed rule.

If the proposal is finalized, decertification ballots would no longer include a straw man representation choice, the board said. Once it’s determined that interest in decertifying an existing union “is valid and sufficient, the Board will authorize the election with the incumbent and the no representation option, along with a write-in option,” the board said.

Union Challenges Likely

Linda Puchala, one of the NMB’s three members, dissented from approving the rule but was outvoted by members Kyle Fortson and Gerald Fauth.

That’s significant because the board usually operates by “consensus,” Larry Willis, president of the AFL-CIO’s Transportation Trades Department, told Bloomberg Law Jan. 31. He called the proposed rule “a solution in search of a problem.”

“We will be filing comments in opposition to the rule. As far as next steps, we will have to see what the board does,” Willis said.

A second official, with a union whose members would be covered under the new rule, said the union likely would challenge it, first during the rule-making process and later, if necessary, through the courts. The official spoke on condition of anonymity because he wasn’t authorized to discuss a possible lawsuit.

The National Labor Relations Board in a Nov. 14 decision found that baggage handlers, plane cleaners, runway assistants, and other airport workers are covered by the Railway Labor Act. This greatly broadened the National Mediation Board’s jurisdiction to include not just direct airline employees such as pilots and airline attendants, but also thousands of workers whose employers are contractors for U.S. airlines.

Comments on the proposal are due by April 1.

—With assistance from Chris Opfer in New York.