After the 2008 election the AFL-CIO Transportation and Trades Department filed a petition with the National Mediation Board (NMB) to change the election rules under the Railway Labor Act (RLA).
Under the old rule the union asking for an election had to have 50%+1 of all the workers in the craft or class who are eligible to vote actually vote for union representation for the union to win. The workers in the class and craft who did not vote were counted as no votes or votes against representation
Example: 400 workers in the class and craft
*100 voted TWU
*99 voted AMP
*201 did not vote
Winner = No Representation
Because a majority did not vote for representation they were counted as “I do not want a union.”
Unions have long complained that the rule was unfair for organizations seeking to represent unrepresented workers. They felt the rule should be the same as in the National Labor Relations Act (NLRA) where the choice receiving a majority of the workers that cast a ballot is counted as the winner. On that ballot there is a choice for union “A” or union “B” (if there are two unions running), but also a choice for no representation or no union.
The NMB did make a rule change to now reflect that only the workers that actually vote will be counted and the choice receiving the majority of votes cast will win, but they will also now include a “No Representation” choice on the ballot, a choice not previously offered on NMB ballots. While this is helpful to unions seeking to represent unrepresented workers it creates some serious risks in a situation where one union is seeking to raid another.
Example: 400 workers in class and craft; only 251 vote
*TWU 100 votes
*AMP 25 votes
*126 No Representation votes
Winner = Decertification. You no longer have any contract or union.
Therefore, in a raid situation far less than a majority of the class and craft could vote for no representation and cause decertification and void the contract. This rule is similar to the rules under the NLRA and, unfortunately, these rules are often manipulated by management and total loss of union representation is much more common under that law. One of the reasons for this is that once the “no representation” choice is on the ballot managements have the right to advocate for this position and they commonly do.
However, the new rule is being challenged by the Air Transport Association (ATA) in the District of Columbia Court of Appeals, and one of the many issues under challenge relates to decertification procedures and the ATA’s demand that they be made even easier. The rule could be shot down by the courts or changed at anytime by the NMB but one thing is for sure, there has always been a way to lose union representation in an election under the Railway Labor Act and that remains the case. With the new rule you could actually be decertified with less than a majority in the class and craft voting for this result.
If there is a tie there will be a run off election.