United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued September 19, 2011 Decided December 16, 2011
No. 10-5253
AIR TRANSPORT ASSOCIATION OF AMERICA, INC.,
APPELLANT
v.
NATIONAL MEDIATION BOARD, ET AL.,
APPELLEES
Consolidated with 10-5254, 10-5255
Appeals from the United States District Court
for the District of Columbia
(No. 1:10-cv-00804)
Robert A. Siegel argued the cause for appellants. With
him on the briefs were Walter Dellinger, Micah W.J. Smith,
John J. Gallagher, Neal D. Mollen, Igor V. Timofeyev,
Mitchell A. Mosvick, Robin S. Conrad, and Glenn M.
Taubman. Stephen D. Brody entered an appearance.
2
John S. Koppel, Attorney, U.S. Department of Justice,
argued the cause for appellee National Mediation Board. With
him on the brief were Tony West, Assistant Attorney General,
Ronald C. Machen Jr., U.S. Attorney, and William Kanter,
Attorney.
Roland P. Wilder Jr., William R. Wilder, Nicholas Paul
Granath, and Lucas K. Middlebrook were on the brief for
appellees International Brotherhood of Teamsters, et al.
James R. Klimaski entered an appearance.
Carmen R. Parcelli and Jeffrey A. Bartos were on the
brief for amicus curiae Transportation Trades Department,
AFL-CIO in support of appellees.
Before: HENDERSON, TATEL and GRIFFITH, Circuit
Judges.
Opinion for the Court filed by Circuit Judge TATEL.
Dissenting opinion filed by Circuit Judge HENDERSON.
TATEL, Circuit Judge: The Railway Labor Act provides
that “[t]he majority of any craft or class of employees shall
have the right to determine who shall be the representative of
the craft or class.” 45 U.S.C. § 152, Fourth. For seventy-five
years, the National Mediation Board counted non-voters as
voting against union representation, thereby requiring a
majority of eligible voters to affirmatively vote for
representation before a union could be certified. In 2010, the
Board issued a new rule: elections will henceforth be decided
by a majority of votes cast, and those not voting will be
understood as acquiescing to the outcome of the election.
Appellants challenge the new rule, claiming that it violates the
statute and is arbitrary and capricious. Rejecting these
3
arguments, the district court granted summary judgment to the
Board. For the reasons set forth in this opinion, we agree and
affirm.
I.
Labor relations in the railroad and airline industries are
governed by the Railway Labor Act. See 45 U.S.C. § 151 et
seq. Passed in 1926 and amended several times since, the Act
seeks to avoid strikes by encouraging bargaining, arbitration,
and mediation. Its goal is to “avoid any interruption to
commerce,” 45 U.S.C. § 151a, while protecting the right of
workers to “organize and bargain collectively through
representatives of their own choosing,” 45 U.S.C. § 152,
Fourth. See generally 45 U.S.C. § 151a (describing the
“[g]eneral purposes” of the Act).
The Railway Labor Act has little to say about how
employees are to choose their representatives. In section 2,
Fourth, the Act provides that “[t]he majority of any craft or
class of employees shall have the right to determine who shall
be the representative of the craft or class.” 45 U.S.C. § 152,
Fourth. The statute also established the National Mediation
Board, 45 U.S.C. § 154, assigning it the task of recognizing
and certifying the chosen representative, 45 U.S.C. § 152,
Ninth. “In the conduct of any election[,] . . . the Board shall
designate who may participate in the election and establish
the rules to govern the election[.]” Id. If there are “any
dispute[s] . . . as to who are the representatives of such
employees,” the Board must investigate. Id.
Until the rulemaking at issue in this case, the only way
employees could vote against union representation was by not
voting at all. For example, a ballot might present the option of
voting for union A, union B, or union C, and those preferring
no union representation would simply abstain. Whichever
4
candidate received a majority of the votes would become the
elected representative unless, of course, a majority of voters
abstained.
Last year, after issuing a Notice of Proposed Rulemaking,
holding an open meeting, and evaluating public comments,
the Board, with one member dissenting, changed its approach
in several respects. For one thing, ballots will now include a
“no union” option so that employees can affirmatively vote
against union representation. Moreover, the Board will no
longer interpret an abstention as a vote against union
representation. Instead, the Board will interpret the intent of
non-voters using “the political principle of majority rule with
the presumption that those not voting assent to the expressed
will of the majority voting.” 75 Fed. Reg. 26,062, 26,069
(May 11, 2010) (internal quotation marks omitted). Finally,
and setting the stage for this case, the new rule provides that
“a majority of valid ballots cast will determine the [union]
representative.” Id. at 26,082 (emphasis added).
In proposing the change, the Board observed that the old
rule rested not on “legal opinion and precedents, but on what
seemed to the [1935] Board best from an administration point
of view.” 74 Fed. Reg. 56,750, 56,751 (Nov. 3, 2009)
(internal quotation marks omitted). And in explaining its rule,
the Board noted that in the political context non-voters are
assumed to acquiesce in the outcome of elections on the
theory that such an assumption better captures what they
intend to convey by abstaining. The Board cited evidence that
employees may fail to vote for a variety of reasons, including
“travel, illness, or apathy,” or because they would prefer to
register no opinion on the question. 75 Fed. Reg. at 26,073.
As to the last point, the Board cited comments, including one
submitted by thirty-nine U.S. Senators, that employees should
have an opportunity to truly abstain (of course, under the old
5
rule abstaining meant voting against representation). Id. The
Board believed that elections conducted under the new rule
would, as in the political context, better reflect the true intent
of non-participants, thus increasing the overall accuracy of
representation determinations. Id.
The Air Transport Association of America, Inc. (ATA),
an organization comprising major United States airlines, filed
a complaint in the U.S. District Court for the District of
Columbia alleging that the Board’s new rule runs afoul of
section 2, Fourth’s plain text because it allows a union to be
certified when less than a majority of all eligible voters vote.
The complaint also challenged the new rule as arbitrary and
capricious in violation of the Administrative Procedure Act.
And, based largely on a letter sent from the dissenting
member of the Board to several U.S. Senators, ATA sought
discovery to explore its allegation that the two-member
majority “predetermined” the outcome and “act[ed] with an
unalterably closed mind.” Appellants’ Br. 57 (internal
quotation marks omitted). The Chamber of Commerce, along
with five Delta employees, who made the additional claim
that the new rule violates their First Amendment right to free
association, intervened as plaintiffs. The International
Brotherhood of Teamsters, the Aircraft Mechanics Fraternal
Association, and the United States Airline Pilots Association
intervened as defendants.
Citing the general rule that discovery is typically “not
available in APA cases,” the district court denied ATA’s
request for discovery because it had failed to make the
necessary “significant showing . . . that it will find material in
the agency’s possession indicative of bad faith or an
incomplete record.” Air Transp. Ass’n of Am., Inc. v. Nat’l
Mediation Bd., No. 10-0804, slip op. at 3 (D.D.C. June 4,
2010). The district court then granted summary judgment to
6
the Board. It found that “nothing in the statute unambiguously
requires that a majority of all eligible voters select the
representative of the employees,” nor “does it even require
that a majority of all eligible employees vote in order for the
election to be valid.” Air Transp. Ass’n, 719 F. Supp. 2d 26,
33 (D.D.C. 2010). Having found the statute ambiguous, the
district court then concluded that the Board’s reading of the
Railway Labor Act was reasonable. Id. at 39. ATA and the
other plaintiffs now appeal.
II.
We begin with the key question presented: does section
2, Fourth require that a majority of eligible voters vote, as
ATA claims, or does it allow a union to be certified by a
majority of votes cast even if a majority of eligible voters do
not participate in the election, as the Board’s new rule allows?
The Supreme Court came close to answering this
question in Virginian Railway Co. v. System Federation No.
40, 300 U.S. 515 (1937). There, two unions competed to
represent the employees, and although one union won a
majority of the votes cast, it failed to receive votes from a
majority of all eligible voters. Interpreting the very provision
at issue in this case—section 2, Fourth—the Supreme Court
held that a union could win even without procuring a majority
of all eligible votes; the union needed only a majority of votes
cast. The Court reasoned:
Election laws providing for approval . . . by a
specified majority of an electorate have been
generally construed as requiring only the consent of
the specified majority of those participating in the
election. Those who do not participate are presumed
to assent to the expressed will of the majority of
those voting.
7
Virginian Ry., 300 U.S. at 560 (internal citations and
quotation marks omitted). We say the Court came “close” to
answering the question because, in the election at issue, a
majority of eligible voters had in fact voted, meaning that
contrary to the repeated assertions of our dissenting colleague,
the Court had no need to determine whether a majority must
participate, or in other words, whether a quorum is required.
See id. at 559 (noting that “in the case of the carmen and
coach cleaners, a majority of the employees eligible to vote
did not participate in the election” and that “[t]here has been
no appeal from the ruling of the District Court that the
designation of the [union] as the representative of the carmen
and coach cleaners was invalid”). We therefore turn to the
statute’s language, asking first “whether Congress has directly
spoken to [this] precise question,” Chevron U.S.A. Inc. v.
Natural Res. Def. Council, Inc., 467 U.S. 837, 842 (1984).
Insisting that section 2, Fourth resolves the issue in its
favor, ATA marshals three main points about the provision’s
text. First, it points out that “the right to determine who shall
be the representative of the craft or class” belongs to the
“majority” of a “craft or class”—not to a minority or to those
who happen to vote. See also Dissenting Op. at 6 (echoing
this argument and describing section 2, Fourth as “grant[ing]
the majority . . . the collective right to determine the
representative”). Second, emphasizing that section 2, Fourth
grants the majority “the right to determine,” rather than “a
right” to determine and citing the dictionary definition of the
word “the,” ATA argues that the article “the” confirms that
the “right to determine” is a singular right that belongs to the
majority of the craft or class. Given this, ATA reasons, the
Board may not “transfer the Section 2, Fourth right from the
majority of the craft or class to a majority of voters.”
Appellants’ Br. 27. Finally, ATA argues that the word
8
“determine” (in the phrase “the right to determine”)
contemplates “an authoritative pronouncement—a declaration
rather than mere silence or acquiescence.” Id. at 28.
Accordingly, “the majority of a craft or class will not have
exercised its right to ‘determine’ the representative unless it
declares its preferences—by, for example, authorizing an
election or sanctioning an election by participating in it.” Id.
at 30.
All three arguments suffer from a fundamental defect:
nothing in section 2, Fourth “clearly and unambiguously”
answers the question before us, as it must under Chevron step
one. See Nuclear Energy Inst., Inc. v. EPA, 373 F.3d 1251,
1269 (D.C. Cir. 2004) (per curiam). That is, as the district
court observed, nothing in the section clearly and
unambiguously requires that a majority must participate in
order to have a valid election. Congress, moreover, knows
how to impose a quorum requirement when it wants to, as it
did for the Board itself in this very statute. See 45 U.S.C.
§ 154, First (“Two of the members in office shall constitute a
quorum for the transaction of the business of the [National
Mediation] Board.”).
To be sure, as ATA observes, section 2, Fourth says that
the “majority” has “the” right to “determine” who will
represent them. Of course, we would never question
Webster’s definitions of “the” and “determine.” But as the
Supreme Court stated, “the words of [section 2, Fourth]
confer the right of determination upon a majority of those
eligible to vote, but is silent as to the manner in which that
right shall be exercised.” Virginian Ry., 300 U.S. at 560. The
Board’s rule allows employees to exercise that right through
the most traditional of forums—an election. The fact that a
majority of eligible voters decides to abstain—i.e., not
exercise its right—hardly suggests that the majority was
9
deprived of its right. This is how voting rights work. Citizens
with the right to vote in a presidential election must register,
show up to a polling place on the Tuesday after the first
Monday in November, wait in line, enter the booth, and pick a
candidate in order to exercise their right. Those who fail to do
so have not been deprived of their right. Indeed, under the
Board’s interpretation of the Railway Labor Act, an
abstaining majority unhappy with the outcome of a labor
election can simply call for a new election and, by exercising
its right through actually voting, produce a different result.
See 75 Fed. Reg. at 26,077 (reiterating that decertification is
allowed when fifty percent of the craft or class shows
interest).
ATA’s argument stretches section 2, Fourth’s language
beyond its plain meaning. According to ATA, “the majority
of a craft or class will not have exercised its right to
‘determine’ the representative unless it declares its
preferences—by, for example, authorizing an election or
sanctioning an election by participating in it.” Appellants’ Br.
30. But one does not, in ordinary parlance or any parlance
with which we are familiar, declare a preference merely by
authorizing an election. Rather, one declares a preference by
affirmatively checking the box next to a candidate’s name.
Consider two hypothetical elections, each with 100 eligible
voters:
Hypothetical A: 49 vote yes. 2 vote no. 49 are
indifferent and abstain.
Hypothetical B: 49 vote yes. The same 2 still oppose,
but this time abstain. The other 49 remain indifferent
and again abstain. Thus 49 vote yes and 51 abstain.
10
Under ATA’s interpretation, the majority affirmatively
“determines” and “declares” yes in hypothetical A, but fails to
do so in hypothetical B, even though the same number voted
yes. In effect, ATA interprets “determine” to mean
“authorize” so that the only way to run an election is to first
have a majority authorize it. In ATA’s world, the Railway
Labor Act actually says: “An election can be authorized only
by a majority of the craft or class.” Of course, the statute does
not say that, much less say it unambiguously.
Having thus concluded that nothing in section 2, Fourth
unambiguously resolves the question before us, we turn to the
second step of Chevron analysis, asking whether the Board’s
new rule represents a “reasonable” interpretation of the
statute. Chevron, 467 U.S. at 844. In thinking about this
question, one must remember that even the old rule imposed
no quorum requirement. The old rule simply assumed that
everyone participated in the election, and it did so by treating
those who abstained as having affirmatively voted against
representation. Thus, the difference between the old rule and
the new rule comes down to how the Board interprets a non-
vote: as a vote against unions (old rule) or as acquiescence
(new rule).
In adopting its new rule, the Board relied on the Supreme
Court’s analysis in Virginian Railway—that “[t]hose who do
not participate are presumed to assent to the expressed will of
the majority of those voting” 300 U.S. at 560 (internal
quotation marks omitted)—and we see nothing unreasonable
about extending that logic to elections where less than a
majority of all eligible voters participate. Indeed, political
elections are often premised on just that reasoning. Id. (citing
Cass Cnty. v. Johnston, 95 U.S. 360 (1877)). Accordingly,
even though less than fifty percent of voters turned out in the
1824, 1920, 1924, and 1996 presidential elections, the nation
11
still accepted John Quincy Adams, Warren G. Harding,
Calvin Coolidge, and William Jefferson Clinton as
legitimately elected presidents.
ATA and the dissent emphasize another line from
Virginian Railway: “If, in addition to participation by a
majority of a craft, a vote of the majority of those eligible is
necessary for a choice, an indifferent minority could prevent
the resolution of a contest.” Id. at 560; see also Dissenting
Op. at 4. But the Court was not suggesting that a majority of
the craft must participate. It was simply buttressing the point
it just made—that it makes no sense to require a candidate to
win a majority of all eligible votes. Imagine an election where
there are 100 eligible voters, 49 vote yes, 2 vote no, and the
remaining 49 are indifferent and abstain. The Court was
merely suggesting that it would be absurd to allow the
indifferent 49 to “prevent the resolution” of this contest. The
Board likewise reasonably decided that the same problem
follows from a majority requirement. In our hypothetical, for
instance, imagine that the 2 no voters abstain rather than vote,
reducing the total number of votes cast to 49. In that situation,
a majority requirement would allow the indifferent 49, joined
by the 2 no voters, to “prevent the resolution” of the contest.
Indeed, citing Virginian Railway, we have held that the
National Labor Relations Board, interpreting similar language
in the National Labor Relations Act (NLRA), may certify a
union even in elections where fewer than a majority of voters
participate. See NLRB v. Cent. Dispensary & Emergency
Hosp., 145 F.2d 852, 853 (D.C. Cir. 1944) (approving
NLRB’s certification of election results despite the fact that
“the election . . . was carried by a majority of a minority”
because the “question seems . . . to be settled by the Virginia
Railway case”); see also NLRB v. Standard Lime & Stone Co.,
149 F.2d 435, 437 (4th Cir. 1945) (“The company seeks to
12
distinguish the Virginian Railway case . . . on the ground that
a majority of the employees participated in the elections there;
but nothing in the statute furnishes the basis for such
distinction.”); Int’l Bhd. of Teamsters v. Bhd. of Ry., Airline &
S.S. Clerks, 402 F.2d 196, 204 n.16 (D.C. Cir. 1968) (noting
the same); 75 Fed. Reg. at 26,069 (noting that these cases
support its reading of Virginian Railway). Comparing the two
statutes, we see no relevant textual difference. Compare 45
U.S.C. § 152, Fourth (“The majority of any craft or class of
employees shall have the right to determine[.]”), with 29
U.S.C. § 159(a) (“Representatives designated or selected for
the purposes of collective bargaining by the majority of the
employees in a unit appropriate for such purposes, shall be the
exclusive representatives of all the employees in such unit for
the purposes of collective bargaining[.]”). ATA nonetheless
argues that the NLRA “merely provides that if the majority
has ‘selected or designated’ a union as its representative, then
that union will represent the entire unit.” Appellants’ Br. 33.
True enough, but under both statutes a union will represent
employees if and only if a majority selects the union. To be
sure, we must avoid placing too much weight on the NLRA.
See Trans World Airlines, Inc. v. Indep. Fed’n of Flight
Attendants, 489 U.S. 426, 439 (1989). But the “majority”
rules under both the NLRA and the Railway Labor Act, and
we have held that the NLRA imposes no quorum requirement.
ATA and the dissent also argue that because the NLRA
affords greater judicial review than the Railway Labor Act,
the Board’s new rule—without “the safeguard provided by
judicial review available under the NLRA”—can lead to the
certification of “minority-supported” unions, which in turn
will produce labor instability. Dissenting Op. at 10. But the
Board carefully considered this question and concluded that
its new rule would have little effect on labor stability, a
judgment to which we owe great deference. See infra at 15.
13
III.
ATA offers four independent reasons for why it thinks
the new rule is arbitrary and capricious: (1) the rule is
unsupported by “compelling reasons,” as, according to ATA,
the Board’s precedent requires, or, for that matter, by the
reasoned decisionmaking called for by the APA; (2) although
the Board had justified its old rule on the premise that it
promoted “labor stability,” it now arbitrarily disregards that
rationale; (3) the Board’s new rule is inconsistent with its
treatment of its decertification and run-off procedures; and (4)
the Board failed to conduct the evidentiary hearing ATA
argues Board precedent requires.
As to its first point, ATA contends that the Board failed
to satisfy its long-standing “compelling reasons” standard for
changing rules, “under which . . . a proposed rule change
[must either be] mandated by the [Railway Labor Act] or
essential to the Board’s administration of representation
matters.” Appellants’ Br. 40 (internal quotation marks
omitted). ATA notes that the Board considered changing its
voting rule in 1948, 1987, and again in 2008, and on all three
occasions was unpersuaded that it needed to change its rules
to make elections more accurate, i.e., more reflective of non-
voter intent. See Pan Am. Airways, Inc., 1 N.M.B. 454, 455
(1948); Chamber of Commerce, 14 N.M.B. 347, 360 (1987);
Delta Air Lines, Inc., 35 N.M.B. 129, 132 (2008). According
to ATA, the Board neither explained why it now disagrees
with these prior conclusions nor identified any new
circumstances that might account for its change of heart. In
the alternative, ATA argues that the Board’s accuracy theory
finds no support in “rational and neutral principles.”
Appellants’ Br. 40 (internal quotation marks omitted). We
disagree.
14
As an initial matter, the Board has never adopted a
“compelling reasons” standard. True, in Chamber of
Commerce, in which the Board considered and rejected the
very rule it has now adopted—i.e., allowing elections to be
decided by a majority of votes cast—it did state that the union
had “not provided the Board with compelling reasons to
change practices in effect for over fifty years.” Chamber of
Commerce, 14 N.M.B. at 362. This, however, is a feeble basis
on which to declare the Board has a formal, established
practice of requiring “compelling reasons.” In any event, here
the Board did find “compelling reasons to make this change to
the representation election procedure at this time.” 75 Fed.
Reg. at 26,072. As the district court put it, “[t]hroughout the
Final Rule the Board provides evidence and analysis for why
the New Rule will better determine employees’ preference
regarding representation.” Air Transp. Ass’n., 719 F. Supp.
2d. at 44. The Board determined that its new rule, which
assumes that non-voters intend to acquiesce rather than to
affirmatively vote against representation, better captures a
non-voter’s “true intent” and thus “allow[s] the Board to more
accurately determine the employees’ true choice.” 75 Fed.
Reg. at 26,073. Given the Board’s statutory responsibility for
administering representation elections, we do not see how it
could be arbitrary and capricious for the Board to believe that
persuasive arguments for how to more accurately measure the
results of such elections are “compelling.”
ATA makes much of the fact that the old rule was in
place since 1935 and that the Board declined at least three
opportunities to change the rule. But the Supreme Court has
held that the APA allows an agency to adopt an interpretation
of its governing statute that differs from a previous
interpretation and that such a change is subject to no
heightened judicial scrutiny. See, e.g., FCC v. Fox Television
Stations, Inc., 129 S. Ct. 1800, 1810 (2009) (“We find no
15
basis in the Administrative Procedure Act or in our opinions
for a requirement that all agency change be subjected to more
searching review. The Act mentions no such heightened
standard. And our opinion in State Farm neither held nor
implied that every agency action representing a policy change
must be justified by reasons more substantial than those
required to adopt a policy in the first instance.”). Thus, for
purposes of APA review, the fact that the new rule reflects a
change in policy matters not at all. We uphold the new rule
because, for the reasons explained above, the Board
“articulated a rational connection between the facts found and
the choice made,” City of Portland v. EPA, 507 F.3d 706, 713
(D.C. Cir. 2007) (internal quotation marks omitted).
As to ATA’s second argument, it is true that the Board
justified its old rule in part on grounds of labor stability. See
75 Fed. Reg. at 26,076. But as noted above, an agency
remains free to change its views where its action rests on
reasoned decisionmaking. In its new rule, the Board devoted
two full pages to the issue, see id. at 26,076–79, observing
that in its experience, election procedures have had little
effect on labor stability; rather, labor stability “in the
industries has been attributed over the years to the Act’s
mediation process, the existence of collective bargaining
agreements, and the restriction on carrier interference in
representation matters.” 75 Fed. Reg. at 26,077. The Board
also noted that its prior statements about the relationship
between voting procedures and stability were based on
reasoning from first principles, not empirical evidence, and
that it no longer finds such reasoning persuasive. Id. at 26,078
(noting the lack of evidence). ATA’s argument—that the old
rule’s majority quorum requirement contributed to labor
stability—is certainly plausible. But under the APA, the
question for us is whether the Board considered all the facts
before it, whether it drew reasonable inferences from those
16
facts, and whether its final decision was rationally related to
those facts and inferences. Nothing in either the record or
ATA’s briefs suggests that the Board failed in this task.
Moving on to ATA’s third argument—that the new rule
conflicts with the Board’s decertification and run-off
procedures—we begin by pointing out that the Board has no
formal decertification process. To decertify a union,
employees designate a straw man to run against the union
representative with the understanding that, if elected, the
straw man would disclaim any representative status. To
trigger such an election, over fifty percent of represented
employees must show interest. See 29 C.F.R. § 1206.2(a)
(“[A] showing of proved authorizations (checked and verified
as to date, signature, and employment status) from at least a
majority of the craft or class must be made before the
National Mediation Board will authorize an election or
otherwise determine the representation desires of the
employees[.]”). By contrast, a regular election can be initiated
by the vote of thirty-five percent of unrepresented employees.
This has always been the rule. The difference between the old
rule (favored by ATA) and the new rule (challenged by ATA)
is how non-votes are interpreted once an election is called.
Under the new rule, once an election is initiated—again, by a
thirty-five percent showing of interest—a union can be
certified by winning a majority of the votes cast. But under
the old rule, once an election was initiated, a union could not
be certified if a majority of employees abstained (because
those non-votes were counted as votes against certification).
Thus, even though thirty-five percent of the employees can
initiate an election under both rules, a union could be certified
under the old rule only if a majority of employees voted in
favor of representation. Because the new rule no longer
requires such a majority in order to certify a union
representative, ATA argues that the Board acted arbitrarily
17
and capriciously by continuing to require a fifty percent
showing of interest for a decertification election—the
problem being that it is now harder to decertify than to certify.
See also Dissenting Op. at 12.
To reiterate, the Railway Labor Act spells out no
procedures for either representation or decertification and, for
that matter, makes no mention of decertification procedures,
much less requires them. Absent plain statutory language or
some other evidence of congressional intent to guide us one
way or the other, we defer to the Board’s reasonable balance
of the competing interests at stake. See Am. Mar. Ass’n v.
United States, 766 F.2d 545, 560 (D.C. Cir. 1985) (“[Courts]
accord substantial deference to an interpretation of a statute”
when that interpretation “represents a reasonable
accommodation of the conflicting policies that were
committed to the agency’s care by the statute,” (internal
quotation marks omitted)). The Board determined that
decertification elections, if easy to call, would encourage
union raiding—i.e., if decertifying a union is easy, unions will
constantly call for decertification elections to oust the
incumbent. 75 Fed. Reg. at 26,077–78. Indeed, several
commenters expressed exactly this concern. Id. In response,
the Board observed that “it is not changing its showing of
interest requirements” and thus “it is unlikely that there will
be a great increase in ‘raiding’ among unions.” Id. at 26,077.
Perhaps much can be said both for and against the way the
Board has set up decertification elections, but given its
rational consideration of stability, the least that can be said for
its new rule is that it survives arbitrary and capricious review.
As to the related question—the Board’s run-off
procedures—decertification ballots under the old rule
presented three choices: the incumbent union, the straw man,
and a write-in option. Under the new rule, the decertification
18
ballot will also contain a “no union” option. ATA complains
that the Board “acknowledges that the straw-man serves
solely as the proxy for a ‘no union’ vote, yet it nevertheless
retains this completely redundant option.” Appellants’ Br. 52
(citation omitted).
To see how the rule operates and why ATA objects,
consider a hypothetical: 100 eligible voters, 25 vote for union
A, 26 vote for the straw man, 30 vote for no union, and the
remaining 19 abstain. In that situation, because no one option
received a majority of the 81 votes cast, the Board’s rules
would require a run-off election. But the run-off would be
between union A and the straw man, leaving out the “no
union” option even though that option received a plurality of
the votes. This is because (1) to win the election, a candidate
needs a majority of the votes cast, (2) if no one candidate gets
a majority, the election goes to a runoff between the two
candidates with the most votes, and (3) if no single anti-union
option (the straw man or the actual “no union” option)
receives a majority in the first round, the Board will treat
votes cast for the straw man as votes for representation and
then aggregate them with those cast for the union. In our
hypothetical, the Board will treat the election as having
produced 51 votes for some sort of representation (25+26),
and call a runoff between union A and the straw man. Thus,
the “no union” option can never be in the runoff; it either wins
a majority of votes the first time or it is eliminated. The
Board’s reason for doing this rests on an assumption that
given the availability of a “no union” option, those voting for
the straw man are in fact voting for “some sort of
representation” that will presumably be different from the no
union vote.
This quarrel is inconsequential. In the runoff, all “no
union” voters should simply vote for the straw man; doing so
19
will defeat union representation and produce the same result.
This may not be the best system, but potential redundancy is
insufficient to make it arbitrary and capricious. Cf. Petal Gas
Storage, LLC v. FERC, 496 F.3d 695, 703 (D.C. Cir. 2007)
(under the arbitrary and capricious standard of review, an
agency “is not required to choose the best solution, only a
reasonable one”).
This brings us to ATA’s fourth argument—that the Board
acted arbitrarily and capriciously by failing to conduct the
“robust evidentiary hearing required by its own precedent.”
Appellants’ Br. 54. According to ATA, the Board “made a
firm commitment that it would change its standards for union
elections only after engaging in a complete and open
administrative process including a full evidentiary hearing
with witnesses subject to cross-examination.” Id. (internal
quotation marks omitted). To support this proposition, ATA
cites Delta Air Lines, 35 N.M.B. at 132, and Chamber of
Commerce, 14 N.M.B. at 360–62 and 13 N.M.B. 90, 94
(1986). But we agree with the Board that neither case makes
this commitment.
In Chamber of Commerce, the Board held an evidentiary
hearing in response to a petition requesting a rulemaking
proceeding because such a hearing was “the most appropriate
method of gathering the information and evidence” necessary
to decide whether to initiate rulemaking. Chamber of
Commerce, 13 N.M.B. at 94. In other words, the Board was
considering a pre-rulemaking petition and concluded that an
evidentiary hearing was necessary and appropriate. As the
district court noted, “the Board never suggested that a full
evidentiary hearing would be appropriate in proposing a rule
or engaging in formal or informal rulemaking under the
APA.” Air Transp. Ass’n, 719 F. Supp. 2d at 43. Thus, we see
no reason why Chamber of Commerce would apply here,
20
much less why it would bind the Board. And in Delta Air
Lines, the Board did nothing more than suggest that “a
complete and open administrative process” was necessary to
change its voting rules. 35 N.M.B. at 132. As the Board points
out, suggesting that notice-and-comment rulemaking under
the APA constitutes “a complete and open administrative
process” can hardly be arbitrary and capricious. And in any
event, an agency may change its procedures so long as the
new interpretation “is otherwise legally permissible and is
adequately explained.” Chem. Waste Mgmt., Inc. v. EPA, 873
F.2d 1477, 1481 (D.C. Cir. 1989); see also Am. Trucking
Ass’ns v. Atchison, Topeka & Santa Fe Ry. Co., 387 U.S. 397,
416 (1967). Here, notice-and-comment rulemaking, which
allowed for public participation and enabled the Board to
gather relevant information, is more than enough to pass
muster under the APA.
IV.
We turn to ATA’s final argument: that the district court
abused its discretion by denying discovery into whether the
Board majority “predetermined” the outcome and “act[ed]
with an unalterably closed mind.” Appellants’ Br. 57. ATA
argues that the district court erred in doing so because (1) it
applied the wrong legal standard, a claim we review de novo,
see FTC v. H.J. Heinz Co., 246 F.3d 708, 713 (D.C. Cir.
2001), and (2) the publicly available facts adequately support
its request for discovery, a claim we review for abuse of
discretion, see In re Sealed Case (Medical Records), 381 F.3d
1205, 1211 (D.C. Cir. 2004).
Decisionmakers violate the Due Process Clause and must
be disqualified when they act with an “unalterably closed
mind” and are “unwilling or unable” to rationally consider
arguments. Ass’n of Nat’l Advertisers, Inc. v. FTC, 627 F.2d
1151, 1170, 1174 (D.C. Cir. 1979). “[A]n individual should
21
be disqualified from rulemaking only when there has been a
clear and convincing showing that the . . . member has an
unalterably closed mind on matters critical to the disposition
of the proceeding.” C&W Fish Co., Inc. v. Fox, 931 F.2d
1556, 1564 (D.C. Cir. 1991) (internal quotation marks
omitted).
ATA’s concern rests primarily on a letter from dissenting
Chairman Dougherty to several U.S. Senators reporting that
“[t]he proposal was completed without my input or
participation.” Letter from Elizabeth Dougherty, Chairman,
National Mediation Board, to Nine U.S. Senators 1 (Nov. 2,
2009). Dougherty wrote that Members Hoglander and Puchala
informed her not only “that they had prepared a ‘final’ version
of the proposed rule and intended to send it to the Federal
Register” that very day, but also that she had only ninety
minutes to consider the proposed rule and “would not be
permitted to publish a dissent in the Federal Register.” Id. at
1–2. When she protested, they gave her an additional twenty-
four hours, as well as an opportunity to dissent. But when she
submitted her dissent, they required her to remove any
“discussion of . . . process flaws.” Id. at 2. Although
“preferr[ing] not to discuss Board process so publicly,”
Chairman Dougherty expressed her deep concerns about this
“sort of exclusionary behavior,” which, to her, “g[ave] the
impression that the Board has prejudged this issue.” Id. at 2.
In support of its charge against Members Hoglander and
Puchala, ATA argues that “the publicly-available evidence
supports the inference that the . . . majority engaged in a
coordinated effort with two large unions to ensure that
important representation elections at Delta would be
processed under a new voting rule.” Appellants’ Br. 59–60. In
particular, ATA accuses the Board of delaying Delta’s
elections until it issued the NPRM, noting that on the very day
22
the Board published the NPRM, the unions withdrew their
election applications because they preferred to have their
elections governed by the new rule.
According to ATA, the district court applied the wrong
standard in denying its motion for discovery. ATA reads the
district court’s opinion as demanding evidence that
“ ‘ineluctably require[s] the inference that the majority Board
members were acting with closed minds, in bad faith, or in
collusion with outsiders regarding issuance of the New
Rule.’ ” Appellants’ Br. 57 (quoting Air Transp. Ass’n, No.
10-0804, slip op. at 6). But as the Board observes, ATA
cherry-picks from the district court’s analysis. From the very
outset, the district court clearly announced the correct legal
standard: “Discovery typically is not available in APA cases.
But if a party makes a significant showing—variously
described as a strong, substantial, or prima facie showing—
that it will find material in the agency’s possession indicative
of bad faith or an incomplete record, it should be granted
limited discovery.” Air Transp. Ass’n, No. 10-0804, slip op. at
3; see also Citizens to Preserve Overton Park, Inc. v. Volpe,
401 U.S. 402, 420 (1971) (“[T]here must be a strong showing
of bad faith or improper behavior before [an inquiry into the
administrative decisionmaking process] may be made.”).
The district court then carefully reviewed all of the facts
and determined that ATA had failed to make the required
showing—a conclusion that easily satisfies our deferential
standard of review. To be sure, Chairman Dougherty’s letter
reflects serious intra-agency discord, and Members Hoglander
and Puchala’s treatment of their colleague fell well short of
ideal. But as the district court found, the letter—written by a
dissenting member and saying only that the Board’s behavior
gave “the impression” of prejudgment—falls short of the
“strong” evidence of “unalterably closed minds” necessary to
23
justify discovery into the Board’s decisionmaking process. Cf.
Dep’t of the Interior v. Klamath Water Users Protective
Ass’n, 532 U.S. 1, 8–9 (2001) (noting, in the FOIA context,
“the obvious realization that officials will not communicate
candidly among themselves if each remark is a potential item
of discovery and front page news”). This is so even though
Members Hoglander and Puchala may well have had their
own views about how union elections should be run. See
C&W Fish Co., 931 F.2d at 1565 (“We would eviscerate the
proper evolution of policymaking were we to disqualify every
administrator who has opinions on the correct course of his
agency’s future actions. Administrators, and even judges, may
hold policy views on questions of law prior to participating in
a proceeding.”). Indeed, even where a commission member
had inappropriately announced “a prediction of [agency]
action and (implicitly) [announced his] own considered
position,” we concluded that the Due Process Clause was not
offended because “that impropriety . . . gives no indication of
a mind that has been closed to the evidence in the past or that
would disregard any significant new material subsequently
introduced.” Consumer Union of U.S., Inc. v. FTC, 801 F.2d
417, 427 (D.C. Cir. 1986). Finally, the district court found
that the delays in conducting Delta’s elections could be
explained by legitimate reasons. Air Transp. Ass’n, No. 10-
0804, slip op. at 8–10. One union’s application to represent
Delta fleet employees “was delayed because Delta challenged
the appropriateness of the group [that union] proposed to
represent.” Id. at 8. That challenge “required further briefing
which slowed the process.” Id. at 9. According to the district
court, the other union’s application was delayed because the
Board had been asked to review an issue antecedent to the
running of the election. Id. “Given the presumption that
agency members act in good faith, and the lack of concrete
evidence to the contrary,” the district court concluded that it
would “not discredit the Board’s stated reasons for the delay
24
[in these elections].” Id. ATA has given us no reason to think
that any of the district court’s conclusions amounted to an
abuse of discretion.
V.
Finally, the five individual appellants argue that the new
rule violates their First Amendment rights to free association.
As the Second Circuit explained when faced with the same
argument: “Not surprisingly, there is little support for such a
proposition. The First Amendment right of free association
has never been held to mandate ‘majority rule’ in the labor
relations sphere.” Virgin Atl. Airways, Ltd. v. Nat’l Mediation
Bd., 956 F.2d 1245, 1251–52 (2d Cir. 1992).
VI.
For the foregoing reasons, we affirm.
So ordered.
KAREN LECRAFT HENDERSON, Circuit Judge, dissenting:
Seventeen years ago, this Court had to rein in the
National Mediation Board (NMB or Board) for “blatantly []
exceed[ing] its statutory authority” and, in doing so, it minced
no words. See Ry. Labor Execs.’ Ass’n v. Nat’l Mediation
Bd., 29 F.3d 655, 664 (D.C. Cir. 1994). Writing for the en
banc Court, Judge Edwards vacated a Board procedure
authorizing both carriers and the Board sua sponte to trigger
Board investigations of representation disputes under section
2, Ninth of the Railway Labor Act (Act), 45 U.S.C. § 152,
Ninth. Id. For the previous sixty years, the Board had
initiated such investigations only on petition of, or on behalf
of, employees, as section 2, Ninth commands. The Court
assailed the Board’s “gross violation” of section 2, Ninth,
concluding that the procedure was “not only unprecedented,
but legally insupportable as well.” Id. at 659, 664. 1 It looks
to me as though the Board is at it again, only this time my
colleagues are letting them get away with it. Accordingly, I
respectfully dissent.
Section 2, Fourth provides: “The majority of any craft or
class of employees shall have the right to determine who shall
1
The vacated panel opinion, written by then-Judge Ruth Bader
Ginsburg, had likewise invalidated the Board’s procedure,
concluding that it was “without legislative license,” Ry. Labor
Execs.’ Ass’n v. Nat’l Mediation Bd., 988 F.2d 133, 134 (D.C. Cir.
1993), vacated, 996 F.2d 1271 (D.C. Cir. 1994) (en banc), and
reminding the Board that it “may not serve as surrogate legislator.”
Id. at 141 n.10. The Board plainly needed that reminder, as the
panel opinion emphasized by relying on, inter alia, Detroit & T.S.L.
R.R. v. United Transp. Union, 396 U.S. 142, 158−59 (1969). See
id. In that case, 25 years earlier, the U.S. Supreme Court had
declared: “Certainly there is nothing in the [Railway Labor] Act
which can be interpreted as giving the Mediation Board the power
to change the plain, literal meaning of the statute.” Detroit & T.S.L.
R.R., 396 U.S. at 159.
2
be the representative of the craft or class . . . .” 45 U.S.C.
§ 152, Fourth. Were I writing on a clean slate—that is,
without knowing the background of section 2, Fourth’s
enactment, without reading the Supreme Court’s decision in
Virginian Railway v. System Federation No. 40, 300 U.S. 515
(1937), and, most important, without using the Chevron 2
invention—I would conclude, as urged by Appellant
American Transport Association of America, Inc. (ATA), that
section 2, Fourth means the majority of the relevant craft/class
must vote for, or otherwise endorse, unionization. While the
overlay created by the provision’s background, by the
Supreme Court’s reading of it and even by the Chevron
sequence has complicated otherwise straightforward
language, what it has not done is to replace “majority” 3
participation with a lesser number.
The 1934 amendment of the Railway Labor Act, of
which section 2, Fourth is a part, is discussed in Virginian
Railway. The case involved a representation dispute pitting
the “company union,” 4 the Mechanical Department
Association of the Virginian Railway (Association), against
System Federation No. 40, a local of the American Federation
of Labor (Federation). The Board subsequently certified the
Federation as the “duly accredited representative of
petitioner’s employees in the six shop crafts,” including all
mechanical department employees except for the carmen and
2
Chevron U.S.A. Inc. v. Natural Res. Def. Council, Inc., 467 U.S.
837, 842−43 (1984).
3
“Majority” means “a number greater than half of a total.”
Webster’s Third New Int’l Dictionary 1363 (1993).
4
A “company union” was organized and controlled by the railroad
to, inter alia, counter efforts by employees to organize rival unions.
Representation Election Procedure, 75 Fed. Reg. 26,062, 26,074
(May 11, 2010).
3
coach cleaners. 5 Virginian Ry., 300 U.S. at 539.
Notwithstanding the Board’s certification, the railroad refused
to recognize the Federation, even organizing another company
union. Id. at 539−40 & n.1. The railroad made several
challenges, including one to the certification of the Federation
as the blacksmiths’ representative. The blacksmiths’ craft had
46 members eligible to vote and 30—a majority of the craft—
had participated in the election. Because the Federation had
not received a majority of the votes of the entire craft (23 plus
1 or more) but instead only 22 votes (the other 8 voting for
the company union), the railroad maintained the Board’s
certification of the Federation was invalid. See Sys. Fed’n No.
40 v. Virginian Ry. Co., 11 F. Supp. 621, 626 n.1 (E.D. Va.
1935).
The Supreme Court upheld the certification of the
Federation, however, and, in so doing, interpreted section 2,
Fourth—an interpretation that has endured ever since.
Rejecting the railroad’s reading, the Court noted that section
2, Fourth “confer[s] the right of determination upon a
majority of those eligible to vote, but is silent as to the
manner in which that right shall be exercised.” Virginian Ry.,
300 U.S. at 560. Borrowing from the “general[]
constru[ction]” of election laws that require for success a
majority vote of the electorate, the Court stated the majority
vote of the electorate means “the consent of the specified
majority of those participating,” while those not participating
“ ‘are presumed to assent to the expressed will of the majority
5
The carmen and coach cleaners were not included in the Board’s
certification because, as the district court held, a majority of that
craft had not participated in the election. Sys. Fed’n No. 40 v.
Virginian Ry. Co., 11 F. Supp. 621, 628 (E.D. Va. 1935). No party
appealed from the district court’s holding. Virginian Ry., 300 U.S.
at 559.
4
of those voting.’ ” Id. (quoting Cnty. of Cass v. Johnston, 95
U.S. 360, 369 (1877)). The Court’s next words bear quoting:
We see no reason for supposing that section 2,
Fourth (45 USCA § 152, subd. 4), was intended to
adopt a different rule. If, in addition to participation
by a majority of a craft, a vote of the majority of
those eligible is necessary for a choice, an
indifferent minority could prevent the resolution of
a contest, and thwart the purpose of the act, which is
dependent for its operation upon the selection of
representatives.
Id. 6 The Court concluded its discussion by examining the
congressional intent manifested in the language used in
section 2, Fourth, noting that it was taken from a rule
promulgated by the former Railroad Labor Board pursuant to
the Transportation Act of 1920, a predecessor of the Act. The
Labor Board had construed the language to mean that a
majority of the votes cast sufficed to select a representative
“where it appeared that a majority of the craft participated in
the election.” Id. at 561 (emphasis added).
While Virginian Railway addresses many other issues, 7
its resolution of the section 2, Fourth issue makes one critical
6
At the time, employees were not allowed to vote for “no
representation.” Instead, they could select only between competing
unions. The Board instructed employees who wanted no
representation to abstain from voting because, at that time (and
until it promulgated the challenged rule) it considered non-voting
employees as having voted for “no representation.” 75 Fed. Reg. at
26,062−63; see e.g., Sys. Fed’n No. 40, 11 F. Supp. at 626 n.1
(ballot allowed employees to vote for Federation or Association
only). See infra note 9.
7
Indeed, the Court described the railroad’s section 2, Fourth
challenge as a “minor objection[].” Virginian Ry., 300 U.S. at. 541.
5
point unmistakably clear: the majority of the craft/class must
participate in any unionization election. That majority
participation is a condition precedent is manifested by the fact
that the carmen and coach cleaners election in which the
majority of the craft did not participate was declared invalid
and, although the declaration was not appealed, the Court saw
fit to note the declaration in its six-paragraph discussion of
section 2, Fourth. Moreover, in adopting its majority-of-
votes-cast-with-majority participation interpretation, the Court
expressly described majority participation as “necessary”
when it declined to make, “in addition,” the majority of those
eligible to vote necessary to choose a representative. And its
use of the phrase “indifferent minority” makes clear that
“majority participation” is required; otherwise the
“indifferent” (i.e., non-participating) members of the
craft/class could have just as easily comprised a majority.
As noted, Virginian Railway’s construction of section 2,
Fourth has endured for over three-quarters of a century. In
1943, our Circuit applied Virginian Railway, construing
section 2, Fourth to require for unionization “the majority of
the votes cast at an election, provided a majority of those
eligible to vote have participated.” See Bhd. of Ry. & S.S.
Clerks v. United Transp. Serv. Emps. of Am., 137 F.2d 817,
819 (D.C. Cir. 1943) (citing Virginian Ry.) rev’d per curiam
on jurisdictional ground, 320 U.S. 715 (1943) (emphasis
added); see also Nashville, C. & St. L. Ry. v. Ry. Emps.’ Dept.
Labor, 93 F.2d 340, 343 (6th Cir. 1937) (upholding Board’s
certification based on majority of votes cast because majority
of eligible employees voted) (citing Virginian Ry.); NLRB. v.
Whittier Mills Co., 111 F.2d 474, 477−78 (5th Cir. 1940)
(interpreting Virginian Railway’s holding as “[w]here with
fair opportunity to all members of the unit to vote, a majority
do vote, they are, so to speak, a quorum to settle the matter,
and the majority of that quorum binds those not voting, and
suffices to select the bargaining representative of the unit”);
6
see also Ass’n of Clerical Emps. v. Bhd. of Ry. & S.S. Clerks,
85 F.2d 152, 156 (7th Cir. 1936) (pursuant to section 2,
Fourth, if majority of eligible employees participates in
election, “the general rule applies that those not voting at an
election should be considered as assenting to the will of the
majority there expressed”) (citing Cnty. of Cass v. Johnston,
95 U.S. 360 (1877)). But see NLRB v. Cent. Dispensary
& Emergency Hosp., 145 F.2d 852, 853−54 (D.C. Cir. 1944)
(in election under National Labor Relations Act, Virginian
Railway construed to apply majority-of-votes-cast rule); Int’l
Bhd. of Teamsters v. Bhd. of Ry., Airline & S.S. Clerks
(BRAC), 402 F.2d 196, 204 n.16 (D.C. Cir. 1968) (same).
Having considered the backdrop against which section 2,
Fourth was enacted as well as the lone Supreme Court
decision construing it, I am convinced, as I would have been
had I not considered the background and Virginian Railway
overlay, that section 2, Fourth unambiguously requires that
the majority of the craft/class must participate in any
representation election. Section 2, Fourth grants the majority
of a craft/class the collective right to determine the
representative; it does not grant each employee an individual
right to vote in an election as is the case with popular
elections. 8 While we all agree that every eligible employee is
entitled to vote, the issue is who determines the
representative: the majority of those who vote for a
representative with majority participation or the majority of
those who vote for a representative without majority
participation? Section 2, Fourth declares loud and clear that
the majority—which collectively possesses the right—
necessarily must participate in determining the representative.
8
My colleagues’ discussion of presidential elections, Majority Op.
at 10−11, thus misses the crucial issue.
7
The Supreme Court reached the same conclusion in
Virginian Railway, finding section 2, Fourth “silent” (and
therefore unclear) only “as to the manner” in which the
majority’s right is to be exercised. While the Court included
within “manner” whether the majority of the craft/class must
also vote for a particular union—deciding it did not—it did
not find section 2, Fourth “silent” as to majority participation.
This being so, I believe section 2, Fourth in pertinent part
merits a Chevron one analysis, that is, its requirement that the
majority of the craft/class participate in determining
unionization vel non is unmistakably plain.
And so I come to the NMB’s challenged rule, which
provides in relevant part:
In representation disputes, a majority of valid
ballots cast will determine the craft or class
representative.
75 Fed. Reg. at 26,062 (emphasis added). 9 Because the rule
jettisons majority participation, it violates section 2, Fourth
9
The challenged rule effects a change in the Board’s treatment of
non-voters. Under the old rule, the Board presumed that non-voters
opposed representation. 75 Fed. Reg. at 26,062−63. Under the new
rule, the Board presumes that non-voters “acquiesce in the will of
the voting majority.” Id. at 26,078. The Board’s volte face in this
case is reminiscent of its ill-fated Merger Procedures which we
struck down as a violation of section 2, Ninth in Railway Labor
Executives’ Ass’n, supra. There, we characterized its action as
“much more than a midstream change in course; [it is] a wholesale
attempt to rewrite the statute and history.” 29 F.3d at 669. Just as
section 2, Ninth left the Board without authority to adopt the
Merger Procedures, id. at 664−71, section 2, Fourth does not
authorize the Board to presume the acquiescence of non-voters if
the majority of a craft/class has not participated in a representation
election. The Board does not “possess[] plenary authority to act
within a given area simply because Congress has endowed it with
8
and, accordingly, I would invalidate it. U.S. Dep’t of State v.
Coombs, 482 F.3d 577, 580 (D.C. Cir. 2007) (striking down
agency regulation “as an impermissible interpretation” of
statutory language). As Chevron itself emphasizes: “The
judiciary is the final authority on issues of statutory
construction and must reject administrative constructions
which are contrary to clear congressional intent.” 467 U.S. at
843 n.9. In interpreting the plain meaning of section 2, Ninth
in Railway Labor Executives’ Ass’n, supra, we left no doubt
as to the limited, if any, applicability of deference to an
agency’s statutory interpretation if “Congress has directly
spoken to the precise question at issue” and left “no gap for
the agency to fill.” Ry. Labor Execs.’ Ass’n, 29 F.3d at 671
(internal citation omitted); see also Natural Res. Def. Council
v. Reilly, 983 F.2d 259, 266 (D.C. Cir. 1993) (“[I]t is only
legislative intent to delegate such authority that entitles an
agency to advance its own statutory construction for review
under the deferential second prong of Chevron.”) (internal
quotation omitted). Here, the Congress has spoken to the
precise question at issue—who determines the representative
of a craft/class—and has left no gap to be filled by a Board
rule that impermissibly reads “majority” out of section 2,
Fourth.
Assuming without concluding that the Board’s
challenged rule is a permissible interpretation of section 2,
Fourth, it nonetheless fails at Chevron step two because the
Board has failed to provide a “reasoned explanation” therefor.
See Village of Barrington v. Surface Transp. Bd., 636 F.3d
650, 660 (D.C. Cir. 2011). While under Chevron step two the
Board is free to reinterpret section 2, Fourth in favor of an
alternative, permissible interpretation, it must nonetheless
some authority to act in that area.” Id. at 670 (emphases in
original).
9
explain itself. See FCC v. Fox Television Stations, Inc., 129
S. Ct. 1800, 1810−11 (2009) (agency must provide “reasoned
explanation” for adopting new, permissible interpretation of
statute).
The Board relies primarily on judicial interpretations of
the National Labor Relations Act (NLRA), 29 U.S.C. §§ 151
et seq., to support the challenged rule, Appellee’s Br. at
26−29, but the fit is far from neat given the Supreme Court’s
admonition that “the NLRA cannot be imported wholesale
into the railway labor arena. Even rough analogies must be
drawn circumspectly with due regard for the many differences
between the statutory schemes.” Trans World Airlines, Inc. v.
Indep. Fed’n of Flight Attendants, 489 U.S. 426, 439 (1989)
(internal quotation marks omitted). Caution is particularly
needed here where the statutory schemes provide different
mechanisms for ascertaining whether a representative has the
support of the majority of the craft/class it seeks to represent.
While section 9(a) of the NLRA uses language similar to
section 2, Fourth to apply the majority-of-votes-cast rule in
selecting a representative, the NLRA also provides for
judicial review of elections conducted thereunder. 29 U.S.C.
§ 159(a); 10 see Cent. Dispensary & Emergency Hosp., 145
F.2d at 854 (“While the standards by which the [NLRB]
determines whether a minority election is truly representative
are necessarily vague, they may still be subject to judicial
examination and review in case the judgment of the [NLRB]
is arbitrary.”). The certification vel non resulting from a
representation election under the Act, however, is subject to
judicial review only in extraordinary circumstances.
10
Section 9(a) provides in relevant part: “Representatives
designated or selected for the purposes of collective bargaining by
the majority of the employees in a unit appropriate for such
purposes, shall be the exclusive representatives of all the employees
in such unit . . . .” 29 U.S.C. § 159(a).
10
Switchmen’s Union of N. Am. v. Nat’l Mediation Bd., 320
U.S. 297, 305−06 (1943); Int’l Ass’n of Machinists v. Trans
World Airlines, Inc., 839 F.2d 809, 811 (D.C. Cir. 1988)
(“[j]udicial review of NMB decisions is one of the narrowest
known to the law” and “courts have no authority to review
NMB certification decisions in the absence of . . . a gross
violation of the Railway Labor Act”). Thus, the safeguard
provided by judicial review available under the NLRA is not
available under the Act. One reason for the unavailability of
judicial review is that “[t]he Act puts a premium on speed of
resolution” and section 2, Fourth is intended to ensure that
representation disputes are not “dragg[ed] out . . . into other
tribunals of law.” BRAC, 402 F.2d at 204−05 (internal
quotation marks omitted). By certifying an unstable (i.e.,
minority-supported) representative, the new rule heightens the
risk of a disruption to interstate commerce, thus undermining
a key purpose of the Act. 45 U.S.C. § 151a (one purpose of
Act is “[t]o avoid any interruption to commerce or to the
operator of any carrier engaged therein”); see infra note 13.
How the Board “reasonably decided,” Majority Op. at 11,
that continuing to require the majority of a craft/class of
employees to participate would allow “an indifferent minority
to prevent the resolution of a contest” escapes me. Virginian
Ry., 300 U.S. at 560. As already noted, the “indifferent
minority” concern in Virginian Railway was that the 16
blacksmiths who did not vote could prevent the resolution of
the representation contest in which the majority of
blacksmiths had voted but had split their votes between two
representatives, resulting in neither having received the votes
of the majority of the craft/class. Virginian Ry., 300 U.S. at
559−60. Accordingly, the Court ensured that the minority,
indifferent or coerced, id. at 560, could not control the
outcome by giving effect to section 2, Fourth’s mandate that
the majority of blacksmiths participate in the election. Id. In
11
contrast, under the new rule, the minority can—and will—
control the outcome because the majority “of valid ballots
cast” determines representation without regard to the majority
participation condition. 11
Moreover, the Board fails to explain why labor stability
is no longer a relevant consideration for its new rule but
remains relevant for its “showing of interest” requirement.
The Board initiates a representation election for an
unrepresented craft/class if it obtains authorization from 35%
of the employees but it requires authorization from a majority
of the employees to initiate a “decertification” election
process for a represented craft/class. See 29 C.F.R.
12
§ 1206.2. The Board bases unequal “showing of interest”
11
As the ATA notes, under the Act, representatives are generally
certified on a nation-wide or company-wide basis. Appellants’ Br.
at 35. By contrast, representatives under the NLRA are generally
certified on a local basis. Because a certified representative under
the Act represents all of an air carrier’s pilots in the United States,
the new rule would allow 100 pilots voting in Kansas City to force
thousands of pilots nation-wide to accept representation. Id. at 35;
cf. 29 U.S.C. § 159(b) (certification under NLRA generally by local
bargaining unit).
12
The regulation provides that
(a) Where the employees involved in a
representation dispute are represented by an individual or
labor organization . . . a showing of proved authorizations
(checked and verified as to date, signature, and
employment status) from at least a majority of the craft or
class must be made before the National Mediation Board
will authorize an election or otherwise determine the
representation desires of the employees under the
provisions of section 2, Ninth, of the Railway Labor Act.
(b) Where the employees involved in a
representation dispute are unrepresented, a showing of
12
requirements for represented and unrepresented crafts/classes
on the promotion of labor stability, namely, the need to
prevent a rival union from raiding a represented craft/class.
75 Fed. Reg. at 26,078−79. But the challenged rule, coupled
with the 35% authorization requirement for an unrepresented
craft/class, practically ensures labor instability by securing
support from only a minority of eligible employees. 13
Moreover, the elevated showing of interest requirement plus
the Board’s convoluted decertification process (which the
majority opinion itself requires three pages to explain, see
Majority Op. at 16−19) belie my colleagues’ prediction that
the majority of a craft/class “can simply call for a new
election” if the Board certifies a representative based on
minority determination. Id. at 9 (emphasis added). 14
proved authorizations from at least thirty-five (35)
percent of the employees in the craft or class must be
made before the National Mediation Board will authorize
an election or otherwise determine the representation
desires of the employees under the provisions of section
2, Ninth, of the Railway Labor Act.
29 C.F.R. § 1206.2.
13
The Board has recognized that
One need look no further than to the area of
potential strikes to conclude that certification based
upon majority participation promotes harmonious labor
relations. A union without majority support cannot be as
effective in negotiations as a union selected by a process
which assures that a majority of employees desire
representation.
Chamber of Commerce, 14 N.M.B. 347, 362 (1987) (emphasis
added); see also BRAC, 402 F.2d at 203−04.
14
My colleagues also insist on labeling the ATA’s interpretation of
section 2, Fourth’s majority requirement as a “quorum
13
Finally, it is important to remember the Board’s intended
role in labor disputes and, once again, our en banc decision in
Railway Labor Executive’s Ass’n is instructive. Discussing
the legislative history of the Act, the Court stated that,
“[b]ecause mediation was considered to be the Board’s
primary function, Congress sought to delineate the Board’s
other roles in a manner that would avoid compromising its
effectiveness as a mediator.” 29 F.3d at 668 (emphasis
added); see also Ry. Labor Execs.’ Ass’n, 988 F.2d at 140
(citing Chicago & N.W. Ry. Co. v. United Transp. Union, 402
U.S. 570, 580−81 & n.13 (1971)) (“suggesting that Congress
carefully composed RLA’s provisions to preserve employees’
confidence in the Board as a detached, impartial mediator”).
The Board’s challenged rule not only conflicts with section 2,
Fourth but it also elevates the Board’s rule-making function at
the expense of its primary function as unbiased mediator. By
imposing minority rule in representation elections, the Board
requirement.” Majority Op. at 7, 8, 10−12, 16. Although I believe
their lengthy quorum requirement discussion is a distraction, I
remind them of the Supreme Court’s recent holding in New Process
Steel, L.P. v. NLRB, 130 S. Ct. 2635 (2010). In determining that
the NLRB must maintain a membership of at least three to delegate
its authority, the Court emphasized that “[a] quorum is the number
of members of a larger body that must participate for the valid
transaction of business.” New Process Steel, 130 S. Ct. at 2642
(emphasis added). The “quorum” that “must participate” under
section 2, Fourth is the majority of a craft/class of employees. Cf.
id. at 2644 (“The requirement of a quorum is a protection against
totally unrepresentative action in the name of the body by an
unduly small number of persons[.]” (quoting Robert’s Rules of
Order § 3, p.20 (10th ed. 2001))).
14
has put itself squarely on the side of representation and
thereby abandoned its legitimate role. 15
For the foregoing reasons, I respectfully dissent.
15
Because I believe the new rule fails under both steps of Chevron,
I see no need to address the ATA’s protests regarding the
deficiencies in the Board’s rule-making process. See Majority Op.
at 13−24. My silence, however, does not indicate acquiescence in
that portion of the majority opinion.