Air Transport Ass'n of America, Inc. v. National Mediation Board

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.

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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

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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

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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

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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.

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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

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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.

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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.

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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.

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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.