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BLET part of union group suing to overturn new NMB rule that undermines workers

INDEPENDENCE, Ohio, October 22 — The Brotherhood of Locomotive Engineers and Trainmen, along with 14 other unions and union groups representing railroad and airline workers, has filed a joint lawsuit to protect workers covered by the Railway Labor Act from an anti-union rule change recently implemented by the National Mediation Board (NMB).

In a Notice of Proposed Rulemaking (NPRM) dated January 31, 2019, the NMB proposed a rule change that would make it easier to decertify labor unions under the Railway Labor Act. Also, the rule doubles the amount of time a union has to wait before it can apply to again become the representative after a decertification from one year to two years. By a 2-1 vote, the NMB adopted the Final Rule during the summer of 2019.

According to the unions’ lawsuit: “The Board’s Final Rule allowing a direct decertification application, election, and the two-year bar on applications following such an election are unjustified repudiations of eight decades of past practice under the Act, contrary to the statutory language and legislative history, and are without factual basis or adequate justification. The Final Rule is arbitrary, capricious, and an abuse of discretion.”

BLET National President Dennis R. Pierce said: “The NMB’s Final Rule is contrary to 80-plus years of established practice. It is unfair, unnecessary, and is harmful to the stability of the airline and railroad industry because it undermines the balance of labor-management relations.”

The unions’ lawsuit asks the court to declare that the NMB’s Final Rule is invalid because it exceeds the Board’s statutory authority under, and is contrary to, the Railway Labor Act. The unions also ask the court to declare that the NMB’s Final Rule is invalid because it is arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law. Finally, the unions ask the court to preliminarily and permanently enjoining the NMB from implementing the Final Rule.

The Complaint filed by the unions states: “The NMB has exclusive jurisdiction to resolve representation disputes in the air and rail transportation industries. But Congress has expressly limited the circumstances in which the Board may exercise that jurisdiction. It may only do so at the request of employees, and it may only act when an individual or organization seeks to be ‘certified as the representative of … employees.’ Absent such an application, Congress has instructed that the Board ‘shall not direct an election or use any other method to determine who shall be the representative.’ In contravention of this express limit on its jurisdiction, and in an abrupt deviation from over 80 years of past practice, the Board in a Final Rule issued on July 26, 2019 now claims authority to direct an election based on an application by any employee seeking exclusively to ‘decertify’ an existing representative. This action is in excess of the Board’s limited jurisdiction and is a ‘gross violation’ of the Railway Labor Act and should be enjoined.”

The NMB’s new rule also bans any union from attempting to re-organize the workforce for two years, an increase from the current one-year ban. “There is no legitimate reason for this limitation on employees’ statutory rights to organize,” according to the unions’ lawsuit. “This new and extraordinary limitation on employee’s statutory rights is wholly unjustified by the Board, and is twice as long as the existing limits on representation elections following an effective loss of representation under the Board’s long-standing prior procedures. This aspect of the Final Rule is arbitrary and capricious.”

The suit was filed in the United States District Court for the District of Columbia on October 16, 2019.

Tuesday, October 22, 2019
bentley@ble-t.org

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