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Federal Agency Seeks to Create Direct Path for Ousting Unwanted Unions

National labor policy guarantees employees the right to form a union to promote their interests. There are clear, longstanding rules and procedures that provide a direct path to unionization. But what happens when workers decide they no longer desire union representation? For the majority of private-sector workers, there are also clear, formal rules on how to remove an unwanted union.

However, for airline and railroad workers, who are covered by the Railway Labor Act (RLA), unionization is similar to Hotel California: workers may easily form or join a union, but it is nearly impossible to leave.

To address this longstanding inequity, the National Mediation Board (NMB) issued a Proposed Rule on the Decertification of Representatives, which will create formal rules on how workers may remove unwanted union representation. The absence of such formal rules is the “biggest obstacle to employee expression of choice under the RLA,” according to former NMB Chairman Liz Dougherty.

And this proposed rule should not be viewed as controversial, unnecessary, or anti-union, as Sen. Patty Murray (D-WA) and Rep. Peter DeFazio (D-OR) suggest in recent letters they sent to the NMB in opposition to the proposed rule.

Developing clear rules on decertifying union representation fulfills the congressional intent for the RLA to provide for the “freedom of association among employees.” To provide for freedom of association for employees, workers must have a clear path to form and join a union, but also to have a clear path to removing union representation.

In addition, multiple federal courts, including the U.S. Supreme Court, have affirmed that workers covered by the RLA have the right to decertify union representation. As such, it is crucial to issue rules that clearly outline how that process works. Without such rules, employees do not have a real opportunity to fully exercise their rights under the law.

The current method to remove a union illustrates the need for the proposed rule. Here is a brief summary of the current decertification process from the Competitive Enterprise Institute’s comment letter to the NMB:

To initiate the decertification process, the union-represented employees must choose an individual in the class or craft who is willing to be identified as the “straw man,” whose name will appear on the representation election ballot. Next, the employees seeking to decertify a union must collect signed authorization cards from more than 50 percent of the class or craft’s employees that state their desire to remove that union. This is extremely difficult, because under the RLA, unions represent employees in large, company-wide class or craft at various locations, not just at a particular worksite. Employees seeking to decertify a union face communication hurdles and may lack resources to contact their fellow employees who work at other company locations.

After the employees collect signed authorization cards from more than 50 percent of unit members, the employees may file an application for an “Investigation of Representational Dispute” with the NMB. Then, the NMB will hold an election with the following options: 1) the current union, 2) the straw man, 3) a write-in candidate, 4) no union.

To decertify the current union representative, the majority vote must be for “no union” or the “straw man.” If the straw man is elected, the individual employee would then renounce representative status.

The NMB’s proposed rule streamlines this unnecessarily complex decertification process and protects workers. The NMB’s proposal simplifies the decertification process by providing workers with the option to vote for 1) incumbent union, 2) no union, 3) write-in option. If the majority of employees vote “no union,” the union is decertified.

An important aspect of the proposed rule is that employees who wish to remove union representation will no longer have to recruit a class or craft member to appear on the ballot as the straw man. Instead of attempting to convince a majority to sign authorization cards for the straw man, “while attempting to explain that this individual is not actually going to represent them,” the employees would collect cards in support of no union representation.

Removing the straw man entirely from the decertification process creates certainty for employees. With the current decertification process, the straw man causes confusion. Some employees who want to remove their union will reason they should vote for the straw man on the ballot because that is the ballot option they had signed an authorization card for. Other employees, who also want to remove union representation, will vote for the no union option because they no longer desire union representation. This splits the vote for decertification, and the votes for the straw man and no union are not combined. The proposed rule, with only the no-union ballot option, is a much clearer process and better allows employees to express their desire for no union representation. 

Another positive from removing the straw man is that it protects employees from harassment. When an employee publicly designates themselves as the straw man, it provides a ready target for the union’s hostility over decertification. Labor unions have a long, sordid history of maligning workers who attempt to decertify union representation. One straw man was sent numerous vulgar and threatening letters to his home because he supported decertification. While the rule change may not completely eliminate union harassment campaigns, it does not provide such an easy target.

Ultimately, all this proposed rule does is create formal rules to allow workers to fully exercise rights that they already possess and fulfills the intent of Congress when they crafted the RLA. As I conclude in my comment letter:

To satisfy this statutory mission of the RLA, employees must have a straightforward procedure to remove union reprsentation. The NMB’s proposed rule helps protect employees’ freedom of association of and ensures that workers are able express their free choice to remove a union representative that has lost majority support.