Krislov, Joseph

Southern Methodist University

Journal of Air Law and CommerceVolume 43 | Issue 1 Article 31977The NMB's Representation Function: A DecliningActivityJoseph KrislovFollow this and additional works at: https://scholar.smu.edu/jalcThis Article is brought to you for free and open access by the Law Journals at SMU Scholar. It has been accepted for inclusion in Journal of Air Law andCommerce by an authorized administrator of SMU Scholar. For more information, please visit http://digitalrepository.smu.edu.Recommended CitationJoseph Krislov, The NMB's Representation Function: A Declining Activity, 43 J. Air L. & Com. 47 (1977)https://scholar.smu.edu/jalc/vol43/iss1/3THE NMB'S REPRESENTATION FUNCTION:A DECLINING ACTIVITYJOSEPH KRISLOV*T HE RAILWAY Labor Act (RLA), which celebrated its 50thanniversary in 1976, is a comprehensive statute dealing withmany phases of labor relations. The RLA's jurisdiction, however,is limited to the railroad and airline industries; coverage of the lat-ter industry was added in 1936. The Act mandates that the Na-tional Mediation Board (NMB), the administering agency, per-form two major functions: (1) mediate major disputes (contractdisputes) between parties regarding changes in pay, rules or work-ing candidates and (2) designate collective bargaining agents foremployees when disputes arise as to the proper representative.The NMB also appoints referees and neutral arbitrators to hearminor disputes (grievances). Finally, the NMB reports to thePresident when it believes a dispute is likely to interrupt substan-tially transportation services in one section of the country. ThePresident can then delay a strike or lockout by appointing anEmergency Board to study the positions of both parties and torecommend a settlement.1During the early 1970's several bills which would have drastic-ally altered the RLA were debated in the Congress.! Some of* Professor of Economics, University of Kentucky.For a brief introduction to the Act, see B. TAYLOR & F. WrrNEY, LABORRELATIONS LAW 143-45, 453-58, 465-68 (1971). An equally brief introduction tothe RLA and its application to the airline industry can be found in U.S. DEP'TOF LABOR, BULL. No. 1683, AIRLINE EXPERIENCE UNDER THE RAILWAY LABORAcT, 1-16 (1971). The National Mediation Board (NMB) has published a vol-ume summarizing its 36 year history. See NATIONAL MEDIATION BOARD, AD-MINISTRATION OF THE RAILWAY LABOR ACT BY THE NATIONAL MEDIATION BOARD,1934-1970 (1971).A starting point for a discussion of legislative proposals is the symposiumLabor Relations in Transportation, 25 INDUS. & LAB. REL. REV. 3 (1971). Theapplication of the RLA to the airline industry is explored at length in Air Trans-48 JOURNAL OF AIR LAW AND COMMERCEthese bills would have transferred the NMB's authority to designatecollective bargaining agents (the representation function) to theNational Labor Relations Board (NLRB). That Board administersthe National Labor Relations Act (NLRA) and has jurisdictionover employment in interstate commerce. Other bills would havereconstituted the NMB as the Railroad and Airline RepresentationBoard, and transferred the mediation function to the FederalMediation and Conciliation Services (FMCS).' The existing Emer-gency Board procedure would have been eliminated by some ofthe proposals, and the NLRA's eighty day injunction would havebeen substituted.Despite considerable support from the Nixon Administration,none of the proposed changes passed the Congress. And the issueof the RLA's revision appears to be dormant at this time. Never-theless, criticism of the Act continues, and the issue of revisionmay be revived in the future. A critical examination of the NMB'srepresentation activities is therefore desirable. The examinationwhich follows focuses on the volume and pattern of representationelections. It is confined to the data and does not attempt to evaluatethe wisdom of NMB policy regarding bargaining units or electionprocedures.' The study concludes that the NMB's representationfunction has been declining and is now quite modest. Unless em-ployment in the railroad and airline industries, increases dramatic-ally or employees suddenly exhibit a frenzied desire to changeunion representatives, it does not seem likely that the workloadwill increase.port Labor Symposium, 35 J. AIR L. & CoM. 313 (1969). For a brief and par-ticularly unfavorable view of the application of the Act, see Northrup, TheRailway Labor Act: A Critical Reappraisal in COLLECTIVE BARGAINING: SURVIVALIN THE '70's? 187 (R. Rowan ed. 1972). President Nixon's message to revise theRLA is available as NATIONAL EMERGENCY LABOR DISPUTES, H.R. Doc. No.266, 91st Cong., 2d Sess. (1970).'For a discussion in favor of the transfer by a former head of the FMCS,see W. SIMKIN, MEDIATION AND THE DYNAMICS OF COLLECTIVE BARGAINING 220(1971). See also Shils, Union Fragmentation: A Major Cause of TransportationLabor Crises in COLLECTIVE BARGAINING: SURVIVAL IN THE '70'S? 263 (R. Rowaned. 1972).'For some critical comments on the NMB's representation procedures, seeGoulard, The Employees' Free and Clear Choice, 35 J. AIR L. & COM. 420(1969), and Curtin, The Representation Rights of Employees and Carriers: ANeglected Area under the Railway Labor Act, 35 J. Am L. & CoM. 468 (1969).For the NMB's view of its representation activities, see NATIONAL MEDIATIONBOARD, supra note 1, at 65-79.[43:47NATIONAL MEDIATION BOARDThe NMB's annual reports contain data on election results.'Two measures of representation activity are available; one focuseson the number of elections and the second on the number ofemployees eligible to vote. An election may be conducted ineither an unorganized or organized unit. In unorganized units thepetitioning union is attempting to bargain for employees who haveno representation; in organized units one union is seeking to dis-place an incumbent union as the bargaining agent for a group ofworkers. The labor movement praises the former effort becauseit seeks to extend union influence. The latter effort is termed a"raid" and has been condemned by the AFL-CIO, which inaugu-rated a program over twenty years ago to curtail such efforts.'The annual average number of elections, the annual averageand percentage of raids, and the outcome of these raids, by fiveyear intervals for the past thirty years (1945-1974), were asfollows:Raids Successful RaidsNumber of Percent of Percent ofPeriod Elections Number All Elections Number All Raids1945-1949 180 95 53 55 581950-1954 130 79 61 43 541955-1959 120 65 64 37 571960-1964 61 43 70 30 701965-1969 73 38 52 28 741970-1974 51 27 51 18 66These data show a marked decline in the number of NMB rep-resentation elections. Almost two hundred elections were con-ducted annually during the first five year period, but the numberof elections has declined to slightly over fifty in the last five yearperiod. Except for the pattern during 1965-1969, the decline hasbeen continuous in each five year period. As a result, there is asharp difference in the volume of elections between the first andthe second fifteen years. About one hundred thirty elections wereISee, e.g., NATIONAL MEDIATION BOARD, 40TH ANNUAL REPORT, 1974, attable 6.' See, e.g., Cole, The AFL-CIO's Internal Dispute Plan, 92 MONTHLY LAB.REV. 12 (1969). For an early study of raids in the railroad and airline industries,see Krislov, Representation Disputes in the Railroad and Airline Industries, 7LAB. L.J. 98 (1956).1977]50 JOURNAL OF AIR LAW AND COMMERCEconducted annually during 1945 to 1960, compared with half thatnumber in the last fifteen years.A similar decline is apparent in the number of raids. In the firstfive year period there were almost one hundred raids annually,compared with only twenty-seven in the last five years. The averagenumber of raids has declined during each five year period. Andthe pattern during the first fifteen years is again strikingly differentfrom that of the second fifteen years. An average of seventy-nineelections in organized units were held in the period 1945-1960, butonly thirty-six such elections were conducted during 1961-1974.The data also show that there has been a slight decline in theproportion of raids during the last ten years. An earlier study ofNMB elections' showed that fifty-nine percent were in organizedunits during 1938-1945. And the proportion of raids during the1945-1965 period-approximately sixty percent-was remarkablysimilar. During the past ten years, however, only about one-halfof all elections were conducted in an organized unit. This declinemay be due to the AFL-CIO's program of curtailing raiding. Ofcourse, a number of unions active in the railroad and airline in-dustries were not affiliates of the Federation during this period andapparently did not cease raiding.The NMB's proportion of raids is quite high compared with theNLRB's proportion. Professor Gary N. Chaison, who has studiedthe pattern of such elections in a recent decade, found that therewere only 2,599 raids out of 79,777 NLRB elections during the1964-1973 decades-slightly over three percent." Of course, union-ization in the railroad and airline industries is much more extensivethan in most industries falling within the NLRB's jurisdiction.Moreover, new companies are more likely to be formed in othersectors of the economy than in the railroad and airline industries.Unions in the railroad and airline industries have been moresuccessful in raiding than their counterparts in the NLRB's juris-diction. During the ten year period 1964-1973, raiding unionswere successful in capturing less than one-half of the NLRB con-tests." In contrast, unions in the railroad and airline industrieswere successful in sixty percent of the elections in previously' Krislov, supra note 6, at 100.' Chaison, The Frequency and Outcomes of Raids, 15 INus. REL. 108 (1976).Old. at 109.[43:47NATIONAL MEDIATION BOARDorganized units during the thirty year period under review. In onefive year period, 1965-1969, raiding unions were successful innearly three-fourths of their contests.Raiding unions in the railroad and airline industries have beenmore successful in capturing units in the past fifteen years. From1960-1974, unions were successful in capturing seventy percentof the units-, as compared with fifty-six percent for the earlierfifteen years. As in the case of the decline in the proportion ofraids, the AFL-CIO's no-raiding program probably accounts forsome of the change. Because the AFL-CIO has formally con-demned raiding, unions hesitate to raid unless success seems likely.This reluctance results in a very careful selection of organizingtargets and hence may account for the higher success rate.The annual average number of eligible voters in NMB elections,the annual average and the percentage of voters in raids, and theoutcome of these raids, by five year intervals for the past thirtyyears, were as follows:Eligible Voters in Eligible Voters inSuccessful RaidsRaids (in thousands) (in thousands)Percent of Percent ofEligible Voters in Voters inPeriod Voters Number All Elections Number All Raids1945-1949 54.2 47.6 88 20.2 421950-1954 37.2 35.3 95 10.6 301955-1959 11.5 10.7 93 3.2 301960-1964 8.5 8.0 94 5.8 721965-1969 26.7 24.4 91 10.6 431970-1974 11.0 9.1 83 1.7 19As indicated above, the number of eligible voters in NM[B elec-tions has also declined during the thirty year period under review.Over one hundred thousand voters were eligible in NMB electionsduring the first fifteen year period, but the number declined toless than half that number in the latter fifteen year period. Therewas, in fact, a marked concentration of voters in the first ten years;over sixty percent of all eligible voters were in units contestedduring that period.The proportion of eligible voters in raids has been consistently1977]52 JOURNAL OF AIR LAW AND COMMERCEhigh and has not varied very much. Only the first and last fiveperiods have been below ninety percent: eighty-eight percent andeighty-three percent, respectively. Overall, therefore, more thanninety percent of all voters participated in an election in a previ-ously organized unit during the period. This concentration of votersin organized units again contrasts sharply with the pattern ofNLRB elections. Professor Chaison found that only twelve percentof all voters in NLRB elections during the ten year period 1964-1973 voted in organized units."The proportion of voters in units successfully raided has fluctu-ated widely, from a high of seventy-two percent in one five yearperiod to a low of nineteen percent in another. The fluctuation isundoubtedly the result of a victory or loss in a few particularlylarge units in a given year. As indicated above, unions apparentlycaptured units with thirty percent to forty percent of the eligiblevoters during the more typical five year period.NLRB data show that raiding unions have been more success-ful in smaller units. From 1964-1973, for example, raiding unionscaptured forty-six percent of the units but the percent of eligiblevoters in these units was only thirty-six percent." The NMB'selection experience shows a similar pattern.1 Although raidingunions captured sixty percent of their contests in the NMB elec-tions, the eligible voters in these units constituted only thirty-ninepercent of all eligible voters. Only in one five year period was thispattern reversed. From 1960-1964, raiding unions were successfulin seventy percent of the contests, but they succeeded in unitswhich included seventy-two percent of the eligible voters.During the thirty years under review, the number of employeesin the railroad industry has declined dramatically while the numberemployed by airlines has increased. It would seem logical, there-fore, to assume that representation elections in airlines would in-crease. Data for the two industries is available for the past twentyyears, and it confirms a gradual shift to the airline industry. For theI0 ld. at 108.1 In response to my written request, Professor Chaison calculated the per-centage of eligible voters in units in which raiding unions were successful. Letterfrom Gary N. Chaison to Joseph Krislov (May 25, 1976).12 Krislov, The Developing Law: Everybody's Stake in the No-Raiding Agree-ment, 4 LAB. L.J. 83 (1954).[43:47NATIONAL MEDIATION BOARDfive year period 1955-1959, one-fourth of all elections were held inthe airline industry; in the five year period 1970-1974, slightly overone-half (fifty-two percent) of all elections were in airlines. Themajority of eligible voters each year are usually in the railroad in-dustry, but eligible voters in the airlines exceed those in the rail-roads in six of the twenty years for which data is available. From1960-1964, the number of eligible voters in the airline industryrepresented sixty percent of all eligible voters."CONCLUDING REMARKSThe NMB's representation function has declined significantlyduring the past thirty years. In 1968, the NMB estimated that lessthan twenty percent of its professional staff man-years were allo-cated to "work on representation cases."1' Based on the data pre-sented in this study, it seems likely that even that proportion mayhave declined. Unlike the NLRB, the NMB conducts its electionsprimarily in organized units. Because the AFL-CIO has developeda program to curtail raiding, it appears unlikely that there will bean upsurge of representation contests in the NMB's jurisdiction.Legislation to revise the RLA should therefore take into accountthe likelihood that the NMB's representation function is, and proWably will continue to be, quite modest. If the NMB's mediationfunction is shifted to the FMCS and the NMB is reconstituted as arepresentation board only, Congress should consider whether thereconstituted agency's potential workload justifies a separate gov-ernment agency.The NMB's representation function has shifted slowly from therailroad industry to the airlines. Perhaps airline cases may domi-nate the NMB's representation caseload in the future. What impactthis new pattern will have is not easy to predict. It may encourageefforts to remove the airlines from the RLA's jurisdiction.1 It13 For a brief discussion of the NMB's establishment of bargaining units inthe airline industries, see Mason, Collective Bargaining Structure: The AirlinesExperience in THE STRUCTURE OF COLLECTIVE BARGAINING 227 (A. Weber ed.1961).14SIMKIN, supra note 3, at 366.15 Writing in 1972, Robert J. Hickey concluded, "It is evident that the sub-jection of the airlines to the Railway Labor Act and to the Federal Aviation Acthas been a disaster." See Aviation Labor Laws-A Fresh Look, 38 J. AIR L. &COM. 231, 261 (1972). Two journalists have concluded that the NMB is "largely1977]54 JOURNAL OF AIR LAW AND COMMERCEmay lead to further efforts by the NMB to understand and makeallowances for the specific problems and needs of the airlines."°It seems certain, however, that the growing importance of the air-lines will have some impact on the Act's administration.useless and redundant." See Hoerr & Wildstrom, Ripe for Oblivion: The RailwayLabor Act, BUSINESS WEEK, Dec. 15, 1975, at 27." In January, 1976, about one-third of the agency's mediators had had priorlabor relations experience in the airline industry. Interviews by the NationalMediation Board (Jan. 1976).[43: 47

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The NMB\u27s Representation Function: A Declining Activity

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