The National Mediation Board has agreed to open a controversial rulemaking proceeding to decide whether it should change the way airline labor elections have been conducted in the U.S. for 75 years, by issuing a notice of proposed rulemaking.

The NMB couldn't even issue the notice, which will be printed in the Federal Register tomorrow, without its own odd internal controversy; Chairman Elizabeth Dougherty issued a dissent from the proposal, saying she had no part in it and was given little time to read it.

It would appear that the other two members of the three-member board--Linda Puchala and Harry Hoglander--proceeded without Dougherty. In a Nov. 2 letter to nine Senators, Dougherty said, "The proposal was completed without my input or participation, and I was excluded from any discussions regarding the timing of the proposed rule." She went on to say that she was not privy to early drafts of the proposed rule, nor its timing. She was given the "final" version of the rule on Oct. 28, and was told she had 1.5 hours to consider it. She went on to say that she was told that if she dissented, her dissent would not be published. Although she was given an extra 24 hours to digest the proposal after she requested more time, additional pleas by her for an extension were rejected. Dougherty told the senators she is troubled by the exclusionary behavior of her colleagues, and their lack of consideration of her role as an equal member of the board.

Although she is against the proposed rule, Dougherty at the same time says the only proper course of action is to allow full comment by the industry on the request by the Transportation Trades Department to change voting procedures so that airline employees who do not vote are not counted as "no" votes by the NMB. The NMB requires 50% plus one of the members of a craft or class at an airline to vote in an election before the election results are valid. The TTD, and before it the Association of Flight Attendants, have argued that only in the case of airlines and rail lines in the U.S. is this system used, and it should be changed.

According to Edward Wytkind, president of the TTD, "The NMB's proposed rule change advances a simple proposition: permit a majority of workers who actually vote to decide the election and stop assigning 'no' votes to workers who do not participate." He said the reason workers often sit out and do not vote is because of pressure from the company. This proposal does not require changes to the Railway Labor Act, TTD argues, as the Supreme court has upheld in the past that the NMB has broad discretion to determine how union elections are to be conducted.

This issue prompted editorials from both Wytkind and ATA President and CEO James May in The DAILY on Oct. 21 and Oct. 15, respectively. Airlines are strongly against the proposal. May yesterday said in a statement: "We are in the process of conducting a thorough review of the Notice of Proposed Rulemaking, but remain firm in our position that the National Mediation Board (NMB) does not have the authority to change the rules, which is a right reserved for Congress. We agree with NMB chairwoman Dougherty that the proposal is a radical departure from long-standing and consistently applied rules."

One of Dougherty's main points of opposition is that the proposed rules sets no procedure for de-certifying a union. She also says the board has received requests to consider providing Excelsior lists to unions, which is a related issue. Other areas of current policy also would be affected, such as the NMB currently requires a union seeking to challenge an incumbent union to submit authorization cards for an election from 50% of eligible voters. "I believe [the] board must consider all of these issues together, and I am surprised that my colleagues have ignored these other requests and are addressing only the [TTD's] request," she said.

May agrees that there is no evidence or policy justification for this proposed rule. "It is completely disingenuous to propose this rule change without also proposing a parallel decertification process."

Dougherty also argues that questions exist about the board's statutory authority to make the rule change, to which Wytkind replied, "I find the chairman's dissent difficult to follow because nothing in the Act prevents the board from doing this."

Revising the NMB procedures has become a hot topic recently because of Delta, which has a large number of non-unionized workers. While Northwest flight attendants are members of the AFA, the union has failed to generate enough interest among non-unionized Delta flight attendants to have an election certified (DAILY, Oct. 12). The same holds true for the International Association of Machinists and Aerospace Workers, which just last week withdrew a request it first filed with the NMB in mid-August to rule that Delta and its Northwest subsidiary are operating as a single carrier for the 14,000-member fleet service worker group, as well as for flight simulator technicians and plant protection employees.

Image credit: National Mediation Board