26 NMB No. 51

May 6, 1999

Ronald C. Henson, Esq.

Counsel for Midway Airlines

Ford & Harrison, LLP

1920 N Street, NW., Suite 200

Washington, DC 20036

Marc J. Esposito, Esq.

Counsel for Midway Airlines

Ford & Harrison, LLP

1275 Peachtree Street, NE.

Suite 600

Atlanta, GA 30309

Edward J. Gilmartin, Esq.

Association of Flight Attendants

1275 K Street, NW., Suite 500

Washington, DC 20005-40006

Re:	NMB Case No. R-6568

Midway Airlines Corporation

Gentlemen:

This determination addresses the Carrier's February 12, 1999, Motion for Reconsideration of the Board's decision in Midway Airlines Corporation, 26 NMB 154 (1999). The Association of Flight Attendants (AFA), which was certified as the representative of Midway's Flight Attendants in the Board's decision, filed a response on February 23, 1999.

For the reasons set forth below, the Carrier's Motion for Reconsideration is denied.

I.

A.

In Midway Airlines, supra, the Board found that AFA's actions did not taint the laboratory conditions in a re-run election which the Board ordered after finding that the Carrier interfered in the first election. See Midway Airlines, 26 NMB 41 (1998). The results of the re-run election were that of 107 eligible voters, eighty-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 its investigation which included review of Board records and interviews with Board employees.

Based upon its investigation, the Board found that AFA made misrepresentations about the Board and the Railway Labor Act (Act) which, while not affecting the outcome of the re-run election, impugned the Board's neutrality. Midway Airlines, 26 NMB 154 (1999). Based upon its concerns about potential damage to the agency's ability to effectively administer the representation duties of the Act, the Board reduced the normal two-year certification bar to one year.1 In addition, through its decision, the Board gave Notice that it would deal with "future misrepresentations regarding the Board . . . with increasingly severe sanctions . . . ."

B.

In support of its Motion for Reconsideration, Midway makes several arguments. First, the Carrier asserts that the Board failed to follow its own procedures dealing with allegations of election interference as set forth in Section 14.0 of the Board's Representation Manual. Second, Midway maintains that the Board did not investigate the impact AFA's misstatements may have had on the outcome of the election. Third, the Carrier contends that the "remedy" imposed by the Board, was "disproportionately lax." Finally, Midway argues that the Board should order a new election and, just as the Board issued a "Notice" to the employees when it found Carrier interference, send a Notice to the employees regarding AFA's conduct.

C.

AFA urges the Board to deny the Carrier's Motion. Although the Organization disputes the Board's finding that it made misrepresentations, AFA asserts that the reduction of the bar was both appropriate and consistent with Board precedent.

II.

A.

Section 18.0 of the Board's Representation Manual2 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 establishes that Midway has failed to state a sufficient basis for granting the relief sought.

B.

Section 14.0 of the Board's Representation Manual provides in part, as follows:

[A]llegations of election interference must be accompanied by substantive evidence. The allegations and supporting evidence must present a prima facie case, otherwise the Chief of Staff will find an insufficient basis for further investigation absent extraordinary circumstances which justify an exception to this standard procedure. Absent extraordinary circumstances, the count will take place as scheduled and unless a prima facie case is established a certification or dismissal will be issued.

Allegations of election interference are evaluated initially to determine whether a prima facie case has been established. When the record is examined to determine whether the participant alleging interference has presented a prima facie case, the allegations and evidence are evaluated to determine whether they provide a basis for further investigation.

The Board has applied this investigatory approach in several cases to conclude ultimately that no further investigation is necessary under the guidelines of Section 14.0. Express One International, 25 NMB 420 (1998), Western Pacific Airlines, 23 NMB 217 (1996), United Feeder Service, 23 NMB 108 (1996). In America West Airlines, 22 NMB 114 (1994), the Board "reviewed all of the documents . . . [and found] insufficient evidence . . . to go forward with additional investigation."

Although the Carrier takes issue with the Board's reliance on its decision in Fox River Valley Railroad, 20 NMB 251 (1993), the investigative approach used in that case is comparable to the one used in this case. In Fox River Valley, the Carrier filed allegations of union interference. The Board received and considered submissions from the Carrier and the two Organizations involved before determining that there was no prima facie case to warrant further investigation. Despite this finding, the Board waived the certification bar

due to the "unusual circumstances" of the case. In the instant matter, the Board also undertook additional investigation before reaching a similar conclusion.

Additionally, in conducting its investigation, the Board was mindful that "certain campaign activity, when engaged in by an organization rather than by a carrier . . . does 'not produce the same effect on employees.'" Midway Airlines, 26 NMB 154 at 161 (1999), citing Federal Express Corporation, 20 NMB 659, 665 (1993).

III.

The Board finds that the Carrier's Motion for Reconsideration fails to meet the standards set forth in Section 18.0 of the Representation Manual for reconsideration of a Board determination. The record establishes that there is an insufficient basis for the Board to conclude 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, contrary to the Carrier's assertion, the Board conducted an investigation consistent with the standards in the Representation Manual. The Board has concluded that

Midway failed to establish a prima facie case of interference to warrant further investigation.3 The Board's investigation resulted in a Findings Upon Investigation, which provided for a certification with the one-year bar, a 50% reduction of the standard certification bar period.

The Board has investigated the choice of representative of Midway's Flight Attendants since AFA filed its application in December 1997. The Board took the entire record of the case into consideration, including its finding that the carrier's actions tainted the laboratory conditions, in determining that there was no need for further investigation beyond the agency's initial investigation of the Carrier's assertions of election interference.

IV.

The Board has carefully considered the entire 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. Accordingly, the Board will not order a new election, and the sanction of a one-year certification bar will remain in effect.

By direction of the NATIONAL MEDIATION BOARD.

Stephen E. Crable

Chief of Staff

Copy to:

Ms. Patricia Friend

Mr. John Schrage