• NMB Clarifies Run-Off Election Rule
  • August 14, 2012 | Author: M. Blake Martin
  • Law Firm: Ford & Harrison LLP - Atlanta Office
  • 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.

    On May 15, the NMB issued a NPRM to revise the Board's election rules to comply with the amendments to the RLA in the Federal Aviation Administration Modernization and Reform Act of 2012 (the FAA Act), which went into effect on February 14, 2012.  The proposed rule addressed the NMB's rulemaking authority, the procedure for run-off elections, and the showing of interest required for an unrepresented craft or class.  In the May 15 NPRM, the NMB appeared to be proposing a change in its procedures in the event that there is 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").