relied on factors which Congress has not intended it to consider, entirely failed to consider an important aspect of the problem, offered an explanation for its decision that runs counter to the evidence before the agency, or is so implausible that it could not be ascribed to a difference in view or the product of agency expertise.
It is to be noted that the words of the section 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. Election laws providing for approval of a proposal 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.... We see no reason for supposing that section 2, Fourth, was intended to adopt a different rule.
The Attorney General supported ... the NMB's power to certify an authorized employee representative even though a majority of the employees did not participate in the election, relying on Virginian Ry. Co. v. System Federation No. 40, 300 U.S. 515, 57 S.Ct. 592, 81 L.Ed. 789 (1937). There the Court upheld the use of a presumption that non-voters concur in the wishes of the majority of voters. That case might be distinguished because a majority of the employees in the unit did participate, and the Court noted that fact. However, the Court's reliance in Virginian Ry. on an analogy to political elections served to support NLRB power to certify a union *35 even where a majority of the unit did not participate in the election, e.g., Nat'l Labor Relations Bd. v. Standard Lime & Stone Co., 149 F.2d 435 (4th Cir.), cert. denied, 326 U.S. 723, 66 S.Ct. 28, 90 L.Ed. 429 (1945).
no longer impose a position on those who abstain from participating in a representation election by treating nonparticipation as a vote against representation. Employees who are opposed to representation will have the opportunity to vote according to that view. Employees who have no opinion about a representation dispute or wish to abstain from voting for any reason will no longer be counted as a vote against representation.
Because almost all employees were already organized and most elections involved disputes between unions, the NMB's early election ballots provided a choice among representatives without the option to vote against representation. The high degree of organization in the railroad industry at that time led to the assumption that all class or crafts would be organized and for this reason, there was likely no consideration given to the possibility that employees would vote against representation. These factors no longer exist today.
[T]he Board has not proposed this change to increase the rate of union success in representation elections.... Any predictions about whether unions will be more successful under the procedures outlined in that NPRM are mere speculation, as demonstrated by the conflicting viewpoints presented by the commenters about union success rates. Many factors beyond the control of the Board affect whether a union will be successful in an election, including the economy, the culture among employees in the craft or class, resources utilized by unions and carriers during the election process, and the reputation of the union.
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