Tomorrow, the National Mediation Board (NMB) will publish new rules making it easier to unionize in the airline and railroad industries.

We’ve discussed the significant substantive and procedural defects in this proposal before, and will have much to say in the coming days after we fully review the 103-page justification for the rule.

In November, 2009, I wrote a post critical of this agency’s failure to adhere to the Memorandum issued by President Obama in his first days in office titled “Transparency and Open Government” with respect to the process the agency used in even proposing this rule. I quoted the paragraph from the Memorandum emphasizing the importance of transparency given that the NMB’s lone Republican member was not allowed to participate in the decision-making process and had her dissenting opinion censored.

Today, I’ll cite to the next two paragraphs of the Memorandum:

Government should be participatory. Public engagement enhances the Government's effectiveness and improves the quality of its decisions. Knowledge is widely dispersed in society, and public officials benefit from having access to that dispersed knowledge. Executive departments and agencies should offer Americans increased opportunities to participate in policymaking and to provide their Government with the benefits of their collective expertise and information. Executive departments and agencies should also solicit public input on how we can increase and improve opportunities for public participation in Government.

Government should be collaborative.  Collaboration actively engages Americans in the work of their Government. Executive departments and agencies should use innovative tools, methods, and systems to cooperate among themselves, across all levels of Government, and with nonprofit organizations, businesses, and individuals in the private sector.  Executive departments and agencies should solicit public feedback to assess and improve their level of collaboration and to identify new opportunities for cooperation.

Keeping this in mind, turn to the final amendments to the regulations that the NMB intends to publish tomorrow. At first glance, they appear word-for-word identical to the regulations proposed last November. This is remarkable considering that this is the most significant rulemaking that the NMB has conducted in decades. It seems hard to believe that in the almost 25,000 public comments that were submitted, during the day-long meeting where 31 individuals testified, and in the strong dissent issued by one member of the NMB, none of the issues raised resulted in changing even a single word of the proposed regulatory amendment.

Does anyone really believe this was a collaborative process or that the participation afforded regulated stakeholders and the public at large was real?