National Mediation Board Research Articles

Freeing the Captives: How Captive-Audience Meetings under the NLRB Can Be Controlled

This Article addresses the anti-democratic phenomenon of “captive-audience” meetings and speeches that employers typically require their employees to attend and listen to prior to National Labor Relations Board (NLRB or Board) union-representation elections. Elections are universally recognized as a key element in the democratic process, but for an election to be truly democratic it must be fair and not one-sided. Sad to say, however, present day NLRB elections are highly unfair and heavily tilted toward the employer’s opposition to unions, especially with the use of captive-audiences where employees, on paid-company time, are required to listen to anti-union messages while the employer denies the union similar access to those employees. A prominent management consultant aptly referred to these meetings as “management’s most important weapon.” That weapon had its beginning in the 1953 Livingston Shirt case, where a revisionist NLRB held — erroneously — that the free-speech requirement of Section 8(c) meant that captive-audience conduct was not a Section 8(a)(1) unfair labor practice, notwithstanding that the vice was not in the employer’s speech but in the act of denying the union the right to respond. A cure for this long-standing undemocratic condition already exists. It exists in the form of a pending but not yet decided Interested Persons’ Petition to the NLRB that was filed in 2016 by 106 university professors of labor law or employee relations, which had been composed by the author of this Article. That Petition, which this article naturally endorses, came with the axiom “better late than never,” for circumstances favorable to the filing of that Petition have been ripe ever since the NLRB’s decision in the 1966 General Electric case. It was in that case that he Board first intended to resolve the Livingston Shirt captive-audience issue, but at the last minute, based on a factor that has long-since passed, instead invited later reconsideration. Accordingly, in a belated response to that invitation, the Petition and this Article recommend a tried and successful solution: to wit, an election rule which the National Mediation Board (NMB), consistently applies to airline and railroad union-elections under the Railway Labor Act (RLA), which is that captive-audiences are “inherently coercive” and thus violate the “laboratory conditions” required for a fair election — a concept borrowed from the NLRB’s iconic General Shoe decision. Whereupon, when a union under the RLA loses an election following a carrier’s captive-audience conduct, the NMB’s standard remedy is to order a new election. And that is what this Article and the Petition recommend for adoption by the NLRB. Let the reconsideration begin.

Estimating the Effect of “Change to Win” on Union Organizing

In a 2005 effort to reinvigorate new-member organizing efforts, seven unions split from the American Federation of Labor and Congress of Industrial Organizations (AFL-CIO) to form a new union federation, Change to Win. Using ten years of data from the National Labor Relations Board and the National Mediation Board and a difference-in-difference estimator, the author estimates the effect of Change to Win policies on whether a union won its certification election and the number and percentage of workers successfully organized. The results indicate no statistically significant difference in organizing success following Change to Win’s implementation of new organizing strategies and practices, relative to the AFL-CIO.

Effects on Voter Participation and Unionization Activity from Changes in Railway Labor Act Election Rules

In 2010 the National Mediation Board changed the process by which airline and railroad employees certify a union. To install a collective bargaining entity, new election rules require that the majority of ballots cast be in favor of unionization. This procedure differed from the previous one, which required the majority of a craft or class of laborers to vote in favor of unionization. This study investigated the effects of the voting change on unionization and voter participation for industries covered under the Railway Labor Act. Data from airline- and railroad-related union elections were mined before and after the procedural change and analyzed. Chi-square analysis revealed no significant change in union certification efforts. The t-test results indicated a significant increase in voter participation in Railway Labor Act elections under the new election rules (p < .001).

Effect of NMB Voting Change on Airline Unionization

In 2010 the National Mediation Board made two significant changes to the application of the Railway Labor Act. Election rules were revised allowing employees to certify a union as their collective bargaining entity if a majority of the ballots cast are in favor of a particular union. Prior to the change, union certification required the majority vote of an entire populace of a craft or class of employees, not a majority of ballots cast. Additionally, failure to participate in a union election on behalf of a member no longer equates to an automatic vote against. Data from National Mediation Board airline related elections was mined pre and post procedural change and analyzed. Results indicate no statistical significance in certification elections when comparing the old and new procedure suggesting the change has no effect on union certification.

Some Think of the Future: Internet, Electronic and Telephonic Labor Representation Elections

Amid the scholarly dialogue regarding amending labor certification procedures, there have been calls for the adoption of internet, electronic and/or telephonic representation voting (IETV) procedures in representation elections. To date, most labor relations agencies in the United States and Canada have not implemented IETV. Three notable exceptions are the National Mediation Board (NMB) and the Federal Labor Relations Authority (FLRA) in the United States, and the Canada Industrial Relations Board (CIRB). This article explores the strengths and weaknesses of IETV and the potential for wider adoption of this technology in the representation election context. The article examines NMB’s rationale in adopting IETV, and its experience with this new election format. Insights and experiences from interview participants provide a fuller examination of the prospects and pitfalls of IETV than previous research. The primary rationale for adopting IETV has been premised on pragmatic administrative decision-making, rather than minimizing employer and union interference in voting. Findings also show that IETV has been adopted as a substitute for mail-ballot elections, and not as a replacement for manual elections. These findings have implications for extending the adoption of IETV to other labor relations agencies. This article posits that while IETV is an important innovation in the representation electoral process, it is too early for there to be universal adoption of the format without additional research and experimentation. In experimenting with IETV, the focus should be on determining whether IETV fulfills the fundamental purpose of a representation election: to accurately reflect whether or not employees in a unit wish to be represented by the applicant union. Moreover, in introducing IETV, an agency must explore new means of communicating with unit employees aimed at maximizing participation under the new election format.

Losing Lift and Creating Drag! The Effect of National Mediation Board Execution and Railway Labor Act Court Decisions on the Collective Bargaining Process in the Airline Industry: A Union Perspective

This comment will: (1) contrast the divergent statutory bargaining provisions implemented in the RLA and NLRA, (2) discuss how the NMB's application of the RLA combined with court interpretation of RLA provisions negatively impacts labor unions' leverage in the collective bargaining process, and (3) suggest potential solutions to balance the negotiating dynamic in the airline industry while still serving the legislative purposes enumerated in the RLA.

Out of the Ashes: Options for Rebuilding Airline Labor Relations

The crisis in the airline industry and its labor relations system creates a window of opportunity to introduce changes that are essential to successful industry recovery. This paper summarizes the results of our research on labor relations conducted as part of the MIT Global Airline Industry Project and proposes a set of improvement initiatives. We recommend that (1) companies negotiate a recovery compact with its employees that includes plans for improving the workplace culture and climate and for expediting and resolving collective bargaining contract negotiations, (2) government leaders specify a window of time for industry and labor leaders to agree on changes needed in the Railway Labor Act, (3) the National Mediation Board engage industry and labor leaders in a process of transforming the agency's role to support the changes needed in the industry, and (4) industry, labor, and government leaders create a forum to support mutual learning and improvement.

The National Mediation Board at 50: Its Impact on Railroad and Airline Labor Disputes.

The National Mediation Board at 50: Its Impact on Railroad and Airline Labor Disputes.

Book Review: Labor and Employment Law: The National Mediation Board at 50: Its Impact on Railroad and Airline Labor Disputes

Book Review: Labor and Employment Law: The National Mediation Board at 50: Its Impact on Railroad and Airline Labor Disputes

Administrative Law. Jurisdiction. Jurisdiction Exists under Railway Labor Act and Administrative Procedure Act to Review Statutory Interpretation of National Mediation Board. United Air Lines, Inc. v. National Mediation Bd. (D. C. Cir. 1964)

Administrative Law. Jurisdiction. Jurisdiction Exists under Railway Labor Act and Administrative Procedure Act to Review Statutory Interpretation of National Mediation Board. United Air Lines, Inc. v. National Mediation Bd. (D. C. Cir. 1964)

Government in the Bargaining Process: The Role of Mediation

Three federal agencies engage in mediation ac tivities : the Federal Mediation and Conciliation Service, the National Mediation Board, and the Atomic Energy Labor- Management Relations Panel. Many states and cities also have such agencies. In major disputes or at critical times, however, it is customary for other officials to supplement the efforts of these agencies, and it is not uncommon to enlist the aid of outsiders on an ad hoc basis. Currently, a trend seems to be developing to use collective bargaining as a test of strength rather than as a means of resolving problems. Be cause of the danger that this will spread and produce a public demand that some form of legislative regulation be substituted for free collective bargaining, it is imperative that the most effective use be made of mediation. The prime function of mediation is to induce the parties to employ reason rather than sheer power. Since mediation is and must remain a noncom pulsory activity, mediators must be careful not to lead the parties to suspect that the mediator's personal interest has any bearing on his conduct. The judicial theory that mediation and any form of fact-finding or decision-making must be com pletely divorced should be discarded. This theory has not been followed in practice, and it deprives the mediator of a source of information and strength in his difficult task.