26 NMB No. 23

December 18, 1998

Ronald C. Henson, Esq.

Counsel for Midway Airlines Corporation

Ford & Harrison LLP

1920 N Street, N.W., Suite 200

Washington, DC 20036

Marc J. Esposito, Esq.

Counsel for Midway Airlines Corporation

Ford & Harrison LLP

600 Peachtree at the Circle Building

1275 Peachtree Street, N.E.

Atlanta, Ga 30309

Edward J. Gilmartin, Esq.

Associate General Counsel

Association of Flight Attendants

1275 K Street, N.W., Suite 500

Washington, DC 20005-4006

Re:	NMB Case No. R-6568

Midway Airlines Corporation

Gentlemen:

This determination addresses the Carrier's November 6, 1998, Motion for Reconsideration of the Board's decision in Midway Airlines Corporation, 26 NMB 41 (1998). Midway also requested in its November 6, 1998, filing that the Board rescind its Order that the Carrier post the "Notice to Employees" which was attached to the Board's decision, and also not mail the "Notice" with the ballot materials. The applicant in this matter, the Association of Flight Attendants (AFA), filed a response on November 12, 1998, opposing the Carrier's Motion.

The request regarding the "Notice" was denied on November 9, 1998. For the reasons set forth below, the Carrier's Motion for Reconsideration is also denied.

I.

A.

In Midway Airlines, supra, the Board found that the Carrier's actions had tainted the laboratory conditions in an election involving the craft or class of Flight Attendants. Of 130 eligible voters, sixty- two cast valid ballots for AFA.

The Board based its decision upon the evidence and arguments submitted by the participants, as well as the evidence obtained through the employee interviews conducted by Mediator John W. Schrage, who was assigned to investigate.

To restore the laboratory conditions, the Board ordered a re-run election using its standard ballot, using the original cut-off date. Ballots were mailed November 9, 1998, and the count is scheduled for December 18, 1998. The Board also ordered that the ballot materials include a "Notice" to employees, which is standard in cases where the Board has found interference, and required the Carrier to post the "Notice." The "Notice" stated, in part:

After an investigation conducted by the National Mediation Board in which the Carrier and the Organization had the opportunity to present statements and evidence, the National Mediation Board found that the Carrier's conduct, taken as a whole, interfered with, influenced or coerced employees' choice of representative under Section 2, Ninth, of the Act.

(emphasis supplied).

The "Notice" also quoted Section 2, Fourth of the Railway Labor Act, 45 U.S.C. § 152 Fourth, and Section 2, General Purposes Clause of the Act.

B.

In support of its Motion for Reconsideration, Midway makes several arguments. First, the Carrier contends that it did not grant wage and benefit increases to influence the employees. Second, Midway asserts that the Board's finding that the Carrier's campaign communications were coercive violates Midway's First Amendment rights. The Carrier also takes issue with the application of the Board's "new standard", which requires "clear and convincing evidence of a compelling business justification" for changes in working conditions "during the critical period." Midway argues that this standard was applied "retroactively" without notice, and that, therefore, the Carrier was not given due process. However, the Carrier also maintains that it has met this standard.

Finally, Midway argues that the "Notice" used in this case is improper. According to the Carrier, the reference in the "Notice" to Section 2, Fourth, "mis- characterize[s] the nature of the Board's investigation as an adjudicative proceeding and cast[s] by clear, inference the Carrier's conduct as unlawful." Midway also takes issue with the phrase "the Carrier's conduct, taken as a whole, improperly interfered with . . . employees' choice of representative," (emphasis supplied). The Carrier maintains that since the Board lacks jurisdiction to adjudicate or to find unlawful conduct on the part of the Carrier, that the "Notice" is "inconsistent with the NMB's power and authority." In support of its arguments, the Carrier cites America West Airlines v. National Mediation Board, 743 F. Supp. 693 (D. Ariz. 1990), aff'd, 986 F.2d 1252 (9th Cir. 1992).

C.

AFA urges the Board to deny the Carrier's Motion. The Organization cites Section 18.0 of the Board's Representation Manual, which governs Motions for Reconsideration, in arguing that "Midway has not satisfied the Board's standard . . . and further, the [m]otion is simply a 're-hash' of factual and legal arguments it has previously submitted to the Board." According to AFA, the record before the Board supported its finding that the Carrier granted wage and benefit improvements to influence the election. In addition, the Organization asserts that the Board "correctly found Midway's communications to be coercive."

AFA also maintains that the Carrier's argument regarding the Board's "compelling business justification" test is "without merit," in that the test "actually provides carriers with an opportunity to justify" improvements in wages and benefits. Finally, the Organization notes that subsequent to the decision in America West Airlines, supra, the Board modified its "Notice."

II.

A.

Section 18.0 of the Board's Representation Manual provides as follows:

Motions for Reconsideration of Board decisions concerning jurisdiction, craft or class, challenges or objections or election interference will be given consideration only upon the following circumstances: 1) the motion (original and one (1) copy) is received by the Chief of Staff within five (5) working days of the decision's date of issuance; 2) the motion is accompanied by a certificate of service which attests to its simultaneous service on the designated participants in the proceeding; and 3) the motion states with particularity the points of law or fact which the movant believes the NMB has overlooked or misapplied and the detailed grounds for the relief sought. Upon consideration of a Motion for Reconsideration, the NMB will decline to grant the relief sought absent a demonstration of material error of law or fact or under circumstances in which the NMB's exercise of discretion to modify the decision is important to the public interest. The mere reassertion of factual and legal arguments previously presented to the NMB generally will be insufficient to obtain relief. Reconsideration may not be sought from the Board's certification or dismissal.

The Board's review of the Carrier's submission in support of its Motion for Reconsideration reveals an insufficient basis for granting the relief sought.

B.

The Board based its finding in Midway Airlines, supra, on the "totality of the circumstances," which took into consideration a number of factors, enumerated in its decision. Contributing to the "totality of circumstances" were provision of wage and benefit increases after the Carrier was aware of AFA's organizing campaign, and a series of letters and meetings which Carrier officials used to influence the employees in their choice of representative.

Nothing submitted by the Carrier in its Motion for Reconsideration is sufficient to persuade the Board that it "has overlooked or misapplied" the law or the facts, that the Board has made a "material error of law or fact", or that a modification of the Board's "decision is important to the public interest." Further, as stated previously, the Board based its finding of interference upon the "totality of the circumstances." Although the Carrier asserts that it would have met the "compelling business justification" standard, Midway did not either submit, or offer to submit, any evidence in support of this assertion.

Finally, the Carrier has misquoted the "Notice" attached to the Board's decision and mailed to the employees. Subsequent to the America West Airlines, supra, decision, the Board altered its "Notice" in two significant ways, consistent with the changes suggested by the Arizona District Court. First, the Board removed an entire sentence from the "Notice" used in the America West "Notice" which characterized the Carrier's conduct as "unlawful." Second, despite Midway's quotation to the contrary, the Board has removed the word "improperly" from the phrase "the Carrier's conduct, taken as a whole, interfered with . . . employees . . . choice of representative." Moreover, the Board's authority to employ the Notice as one of its investigatory tools has been upheld by other courts. See U.S. Airways v. NMB, 158 LRRM 2984 (1998), and Metroflight, Inc. v. NMB, 820 F. Supp. 288 (N.D. Tex. 1992).1

III.

The Board has carefully considered the record in this case, including the submissions from the Carrier and AFA. Based upon its review, the Board finds no basis to grant the relief requested by the Carrier. The ballots will be counted as scheduled at 2:00 p.m., Friday, December 18, 1998.

By direction of the NATIONAL MEDIATION BOARD.

Stephen E. Crable

Chief of Staff

Copy to:

Mr. Jonathan S. Waller

Mr. John Schrage