Executive Summary: The National Mediation Board (NMB) has published a revision to its previously issued Notice of Proposed Rulemaking (NPRM) clarifying that it will authorize a run-off election only in elections where three or more options receive a valid vote.
In our May 22, 2012 Legal Alert discussing the NMB's May 15 NPRM to revise the NMB's election rules to comply with the RLA amendments, we cautioned that it appeared from the language of the NPRM that the NMB was proposing a change in its procedures in the event of a tie between those voting for and those voting against representation. Under current practice, in such a situation the union's application would be dismissed. The initial proposed rule stated "[i]f in an election among any craft or class no option receives a majority of the legal votes cast, or in the event of a tie vote, the Board shall authorize a run-off election." This led us to question whether the NMB intended to hold a run-off election between the two highest vote-getters if the tie was between a union and "no representation." For example, if out of 100 votes cast, 50 voted for the union on the ballot, 0 wrote-in another representative, and 50 voted for no representation, the union's application would be dismissed under the NMB's past practice, but would seemingly lead to a run-off election between the union and "no representation" under the proposed rule.
On June 7, the NMB published a revision to its NPRM correcting the language of the May 15 proposed rule with regard to this issue. The NMB's publication states "that Rule 1206.1 only applies in elections where 3 or more options receive valid votes." The revised language states "In an election among any craft or class where three or more options (including the option for no representation) receive valid votes, if no option receives a majority of the legal votes cast, or in the event of a tie vote, the Board shall authorize a run-off election." Based on this clarification, if out of 100 votes cast, 50 voted for the union on the ballot, 0 wrote-in another representative, and 50 voted for no representation, the union's application would be dismissed. But if, out of 100 votes cast, 45 voted for the union on the ballot, 10 wrote-in another representative, and 45 voted for no representation, the NMB would authorize a run-off election between the two highest vote-getters – the union and the carrier ("no representation").
If you have any questions regarding this Alert, please contact the author, Blake Martin, bmartin@fordharrison.com, or the Ford & Harrison attorney with whom you usually work.