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D.C. Circuit Upholds Rule Change by National Mediation Board

Union elections in the airline and rail industries just got a bit easier for Unions. 

The U.S. Circuit of Appeals for the D.C. Circuit in a 2-1 decision upheld a decision by the National Mediation Board (NMB) to change the majority of votes rule in representation elections. Since 1934, members of the proposed bargaining units were counted as “no” votes if they decided not to vote in the election. But the NMB decided earlier last year that the rule should be a majority of the votes actually cast instead of a majority of the eligible voters.

On Friday, Dec. 16, 2011, the D.C. Circuit, in a case entitled Air Transport Association v. NMB, decided that the rule change was not an arbitrary and capricious change. In fact, the court determined, since the statute was silent on the issue, it suggests deference to the agency in deciding how votes were to be counted.

“As the district court observed, nothing in the [Railway Labor Act] clearly and unambiguously requires that a majority must participate in order to have a valid election,” the opinion said. “The fact that a majority of eligible voters decides to abstain — i.e., not exercise its right — hardly suggests that the majority was deprived of its right. This is how voting rights work.”

You can access the decision online by clicking here

© 2022 BARNES & THORNBURG LLPNational Law Review, Volume I, Number 354
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About this Author

Gerald Lutkus, Barnes Thornburg Law Firm, South Bend, Labor and Employment Attorney,
Partner

Gerald F. (Jerry) Lutkus is a partner in the South Bend office of Barnes & Thornburg LLP where he is a member of the firm’s Labor and Employment Law and Litigation Departments. He practices in the areas of labor and employment law counseling and litigation, arbitration, collective bargaining, and media law. Mr. Lutkus has been recognized on the Indiana Super Lawyers list for his work in labor and employment Law. The Best Lawyers in America has recognized Mr. Lutkus for over 10 years for his work in commercial litigation, employment law - management...

574-237-1118
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