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Election Questions and Answers

Many of us have questions about the election process.  The following information is quoted directly from the National Mediation Board (NMB) frequently asked questions webpage.  Click here to read it directly from the NMB.

Frequently Asked Questions: Representation

GENERAL INFORMATION

One of the purposes of the Railway Labor Act (RLA) is to effectuate employees' rights to self-organization. The RLA provides that employees shall have the right to organize and bargain collectively through representatives of their own choosing. It is the National Mediation Board's (NMB) duty to resolve any disputes among employees as to who are their collective bargaining representatives. The NMB investigates these disputes, ensuring peaceful resolutions without disruption to interstate commerce.

The NMB investigates representation disputes in the railroad, commuter railroad, and airline industries only. 

These questions and answers are meant to provide general guidance only. They do not provide definitive determination of any representation matter and are not to be construed as legal opinions that may be cited in any administrative, legal or arbitral proceeding.

1.  Q:  What is the role of the NMB in representation matters?
  A:  It is the NMB's duty to investigate and resolve representation disputes in the railway and airline industries.
     
2.  Q:  How do representation disputes come to the NMB?
  A:  A labor organization (organization) or an individual employee can request that the NMB investigate an alleged representation dispute by filing Form NMB-3, "Application for Investigation of Representation Dispute," available at www.nmb.gov/representation/rapply.html. The organization or individual is also required to file a "Notice of Appearance" with the application which is available at the same link.
     
3.  Q:  Who investigates representation matters?
  A:  Representation investigations are conducted and supervised by the NMB's hearing officers. Periodically, NMB mediators may assist in representation investigations.
     
4.  Q:  What are the procedures for investigating representation applications?
  A:  The procedures are detailed in the NMB Representation Manual (Manual) available at www.nmb.gov/representation/repman0601.html. Generally, an organization or individual seeking representation rights must file an application requesting an investigation. The application must be supported by authorization cards. In appropriate cases, an NMB investigator determines the appropriate craft or class, eligible voters, determines if an election will occur and schedules a mail ballot election.
     

APPLICATIONS

5.  Q:  What is an authorization card?
  A:  An authorization card is a card or document signed by the employee which states the employee desires to be represented by an organization or individual for collective bargaining purposes. Authorization cards must have the name of the organization or individual seeking to represent the craft or class, and must be signed and dated by the employee. Typically, authorization cards also include the following information: employee address, telephone number, job title, employee number, and social security number. The NMB compares the signed authorization cards to the List of Potential Eligible Voters supplied by the carrier to determine the percentage of employees signing authorization cards (generally referred to as the showing of interest).
     
6.  Q:  What is a showing of interest?
  A:  A showing of interest is the percentage of the craft or class that has signed authorization cards. An application must be supported by an adequate showing of interest, in the form of employee authorization cards. Authorizations will be considered invalid if dated more than one year prior to the date on the NMB application. If the craft or class is already represented under the RLA and is covered by a valid existing collective bargaining agreement, the application must be supported from a majority (50% plus one) of valid authorization cards by employees in the craft or class. If the craft or class is unrepresented, the application must be supported by at least 35% of valid authorization cards by employees in the craft or class.
     
7.  Q:  Can an employee in the craft or class sign an authorization card for more than one organization?
  A:  Yes.
     
8.  Q:  What is an Intervenor?
  A:  Once an organization has filed an application, another organization may intervene in the representation dispute and place itself on the ballot by presenting authorization cards signed by at least 35% of the employees in the craft or class.
     
9.  Q:  How can employees change their labor organization?
  A:  Employees can change their labor organization by signing authorization cards for another organization, which then files an application and "wins" an election.
     
10.  Q:  How can employees decertify their current representative without getting another one?
  A:  There is no application for decertification, however if a majority of the craft or class does not vote for representation the current representative will lose its representation rights.
     
11.  Q:  Can employees form and elect their own union?
  A:  Yes, employees can form their own organization if they submit an application supported by a sufficient showing of interest.
     

THE INVESTIGATION

12.  Q:  What does the NMB do after an application is received at its office?
  A:  Normally, the NMB dockets the application and assigns it an R case number, and designates an investigator. The docketing letter sets forth a time schedule for the carrier to provide a list of potential eligible voters and signature samples. If the NMB notes anything unusual about the application (for example, an unusual craft or class; a jurisdictional question; an accretion), the NMB does not docket the application, but gives the matter a CR file number and conducts a pre-docketing investigation. A flow chart of the representation process follows these questions and answers.
     
13.  Q:  What is a craft or class?
  A:  Craft or class is a term used for the group of employees the applicant seeks to represent. Crafts or classes must be carrier system-wide.
     
14.  Q:  What factors are considered in determining the proper craft or class?
  A:  The Board considers several facts in determining a proper craft of class including the composition and relative permanency of the employee grouping along craft or class lines; the functions, duties and responsibilities of the employees; the general nature of the work performed; and the community of interest between job classifications.
     
15.  Q:  Who is eligible to vote in the election?
  A:  All employees working in the craft or class and who are employed as of the last day of the last payroll period prior to the receipt of the application by the NMB are eligible to vote in the election. Employees severing their employment relationship (e.g., by resignation, termination, retirement, death, or promotion) during the balloting period are normally removed from the list. See Manual, Section 5.3 at www.nmb.gov/representation/repman0601.html
     
16.  Q:  Who is ineligible to vote in the election?
  A:  Employees who are managers or do not have an employer-employee relationship, for example management officials, contractor employees, discharged employees. See Manual, Section 5.3 at www.nmb.gov/representation/repman0601.html.
     
17.  Q:  Does the NMB provide home addresses to organizations in representation campaigns?
  A:  The NMB does not provide home addresses to organizations in representation elections. In extraordinary circumstances, where the NMB determines that due to prior interference with the laboratory conditions by the carrier or voter confusion, the NMB may provide the home addresses of eligible voters to the organization.
     
18.  Q:  Can a union be certified by the NMB without an election?
  A:  Yes. If there is only one labor organization applying for representation, and the organization and the carrier agree in writing to a certification based on a check of authorization cards, the NMB's Chief of Staff can authorize the check of authorizations instead of an election. If a majority of the craft or class has signed authorizations, the organization will be certified without an election.
     
19.  Q:  Can my job or position be added or accreted to an existing certified craft or class without an election?
  A:  Yes. An organization which is certified to represent the craft or class may file an application supported by a showing of authorization cards seeking to accrete jobs or positions into the craft or class. The Investigator then determines if the position(s) duties and responsibilities share a sufficient community of interest with the craft or class. If the position(s) share a community of interest, and if the number of employees accreted are fewer than those in the total craft or class, the NMB will accrete the employees in these position in the craft or class without an election.
     

BALLOTING

20.  Q:  How are NMB representation elections conducted?
  A:  Most elections are conducted by mail ballot. Ballots and postage-paid return envelopes are mailed to eligible employees' residences. In the standard election, employees who want to vote for representation mark the ballot in the appropriate box and return it in the postage paid envelope. At the count, the envelopes are opened and separated from the ballots. The ballots are counted. The results are provided to the organization and the carrier in writing.
     
21.  Q:  How does the NMB maintain the secrecy of the ballot?
  A:  The NMB places a unique confidential key number on each return ballot envelope and notes the key number on the Official Eligibility List. The key numbers ensure the security of the ballots. During the ballot count, the ballots are removed from the envelopes. The envelopes are secured from the view of the observers. The ballots, which do not identify the voters, are counted by NMB personnel.
     
22.  Q:  How is the winner of an election determined?
  A:  If a majority of eligible voters in the class or class vote in the election for representation, then the organization that receives the majority of the votes cast "wins" the election.
     

AFTER THE BALLOT COUNT

23.  Q:  What happens after the ballot count?
  A:  If a majority of the eligible voters voted in favor of representation, the NMB issues a certification the next business day. If less than a majority of eligible voters voted in favor of representation, the NMB issues a dismissal.
     
24.  Q:  If a representation application is dismissed, does the current representative of the craft or class of employees lose its representation rights?
  A:  It depends. If an organization files an application for a craft or class that is already represented, the incumbent organization is a party in the investigation and election. If the organization which filed the application does not have an adequate showing of interest or for some other reason the application is dismissed prior to an election, the incumbent organization will remain the representative of the craft or class. If the investigation proceeds to an election and a majority of the eligible voters in the craft or class do not vote in the election, then the application is dismissed and the incumbent organization loses its representation status. In determining whether a majority of employees voted, all votes for representation are totaled.
     
25.  Q:  If a new organization is certified, does the collective bargaining agreement with the incumbent organization remain in force and effect until the new organization and the carrier negotiate a collective bargaining agreement?
  A:  This is not part of the representation procedures under the Act, but generally the answer is yes.
     
26.  Q:  What is election interference?
  A:  The RLA states that a carrier shall not "interfere . . . influence or coerce" its employees in the choice of representative. In order to determine whether there has been interference in the election, the NMB examines whether the "laboratory conditions" essential to representation elections have been tainted. When there are allegations of election interference, the NMB examines the "totality of the circumstances" to determine whether the laboratory conditions have been tainted. The NMB has found election interference where the carrier: conducts improper surveillance of employees; interrogates employees; discharges or disciplines employees; confers benefits on employees; and solicits or collects ballots. The NMB has shortened the application bar period when organizations have solicited or collected ballots.
     
27.  Q:  What should an employee do if he or she observes interference during the election period but before the ballot count?
  A:  Except in extraordinary circumstances, the NMB will investigate allegations of interference only after the ballot count. Therefore, if an employee observes conduct which may be interference during the election process, the employee should report it to the organization conducting the campaign or to the carrier, as appropriate.
     
28.  Q:  What if the organization or the carrier believes that there was interference with the election process?
  A:  Written allegations of interference must be received by the NMB no later than 4 PM, Eastern time, seven business days after the count. Responses to the allegations must be received within seven business after the NMB receives the interference allegations. The interference allegations must state a prima facie case (evidence sufficient to establish) that laboratory conditions were tainted and must be supported by substantial evidence in the form of affidavits and documents. After receipt of the submissions, the NMB will determine if there is a prima facie case of election interference. If the NMB determines there is a prima facie case, the investigation will continue and the NMB will issue a decision. If the NMB finds interference it can order a number of actions, including a rerun election. Manual, Section 14.0 at www.nmb.gov/representation/repman0601.html.
     

OTHER INFORMATION

29.  Q:  What if I am already represented, and I am unhappy with the organization?
  A:  The RLA does not address relationships between employees and their unions, including the payment or amount of union dues, or the representation you receive from the union in negotiations or grievances. Some questions can be answered by the U.S. Department of Labor Office of Labor-Management Standard at www.dol.gov/dol/esa/public/olms_org.htm.
     
30.  Q:  Is the NMB involved in carrier mergers?
  A:  In a merger, the NMB will make a determination if a "single transportation system" exists based upon an application from an incumbent organization representing a craft or class on the pre-existing or merged carrier. If the NMB determines a "single transportation system" exists, it may order a representation election. See Manual, Section 19 at www.nmb.gov/representation/repman0601.html.
     
31.  Q:  What if there is a merger of labor organizations? Will the NMB transfer certifications?
  A:  Upon request of the organizations, the NMB will transfer the certifications to the new organization absent evidence of fraud or gross abuse in the merger procedures.
     
32.  Q:  If the NMB certifies an organization to represent my craft or class, do I have to join the union?
  A:  Under the RLA, a carrier and an organization may negotiate a "union shop agreement" which allows employees at least 60 days from the date of their actual employment to join the union or begin paying a fee to the organization, and limits the obligation to "join" to the payment of uniformly required dues and fees. This provision of the RLA preempts state right-to-work laws. Employees are permitted to become "agency fee objectors," and pay only certain fees which are "germane" to the organization's representational activities. Information on that right can be obtained from the organization. See 45 U.S.C. 152, Eleventh(c).
 

 

 

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Last modified: December 13, 2008