In the Matter of the

Application of the

COMMUNICATIONS WORKERS OF AMERICA

alleging a representation dispute pursuant to Section 2, Ninth, of the Railway Labor Act, as amended

involving employees of

US AIRWAYS

26 NMB No. 63

CASE NO. R-6435

FINDINGS UPON

INVESTIGATION-

AUTHORIZATION OF

ELECTION

June 25, 1999

This determination addresses the June 3, 1999, Motion filed by the Communications Workers of America (CWA) for an "expedited re-run election" among US Airways' Passenger Service Employees. In making its determination in this matter, the Board has taken into consideration the June 11 and June 16, 1999, submissions from the Carrier as well as CWA's June 14, 1999, reply.

I.

CWA requests the Board to conduct a re-run election in view of the May 28, 1999, decision from the U.S. Court of Appeals for the District of Columbia Circuit which ultimately would require the Board to "set aside" the results of an election held in September 1997. That election resulted in the Board's certification of CWA as the representative of US Airways' Passenger Service Employees on October 1, 1997. The Organization also requests the Board to take cognizance of the "unusual or extraordinary" circumstances in this matter and waive the two-year certification bar contained in 29 C.F.R. § 1206.4(a). CWA proposes a ballot mailing of July 1, 1999, and a count date of August 2, 1999, and further requests that the Board direct the Carrier to provide it with updated employee home addresses.

In response, US Airways argues that the Board must first consider whether or not to conduct a re-run election. According to the Carrier, because the Court of Appeals ruled that the Carrier's "campaign materials" were "constitutionally protected," the Board must re-evaluate its findings of interference in US Airways, 24 NMB 354 (1997). The Carrier further asserts that the Board should permit the participants to brief the Board regarding the implications of the Court's decision. US Airways also contends that "the Board should reinstate the results of the initial election and dismiss the CWA's current application."

The Carrier argues further that there is no basis for an expedited election schedule. Instead, US Airways asserts that a re-run election should not occur until a period of time has elapsed, and that the Board should then issue a Notice to Employees explaining why a new election is necessary. The Carrier maintains that if the Board orders a re-run election, then the Board also needs to determine the circumstances of the re-run election, including whether there is a need for a Notice to Employees and provision of home addresses to CWA.1 Finally, US Airways contends that the Board should set aside CWA's certification before conducting another election "pursuant to the court's mandate."

In its reply, CWA maintains that US Airways' employees have "waited long enough" for their choice of representative to be conclusively determined. The Organization, therefore, reasserts its request for a prompt election and for updated home addresses. CWA also points out that the Carrier did not argue, and the Court of Appeals did not consider, the issue of whether the results of the first election should be reinstated, but "only that the results of the re-run election . . . be set aside." The Organization also argues that the Carrier's campaign statements provided only one basis for the Board's finding of interference.

The Carrier, in its June 16, 1999, response, asserts that it never abandoned its constitutional challenge to the Board's 1997 order of a re-run election. US Airways also maintains that the Board has never addressed whether the Carrier's conduct, apart from its speech, warranted a re-run election. In addition, the Carrier asserts that the certification issued to CWA has provided the Organization with an "unfair advantage" for which the Board should allow "sufficient time" to pass to ensure that any re-run election is not "unfairly biased" in favor of CWA.

II.

The Court of Appeals concluded that the Board's 1997 decision unconstitutionally restrained US Airways' speech leading up to the re-run election. In so finding, the Court examined five factors that the Board had set forth to provide "'general guidance concerning carrier actions in connection with employee committees'," and concluded that two, the fourth and fifth factors, regulate pure speech and "unconstitutionally restrained the carrier (prospectively) from engaging in protected expression."2

The court remanded the case to the District Court with instructions to remand to the NMB "to set aside the results of the re-run election and for further proceedings not inconsistent with this opinion."3

Based on the entire record in this proceeding4 and consistent with both the Court of Appeals' decision and Section 2, Ninth of the Railway Labor Act,5 the Board has determined to authorize a prompt re-run election. The Board concludes that the Carrier engaged in conduct, independent of the Carrier's constitutionally protected speech, which tainted the laboratory conditions essential to representation elections by interfering with the employees' selection of a collective bargaining representative.

In making this determination, as discussed below, the Board has examined the circumstances established through its investigation. These circumstances include changes made in working conditions during the critical period in which the Board has repeatedly stated that laboratory conditions must be maintained.6

For example, the Carrier formed a new committee, the System Roundtable, and expanded the scope of existing committees after the Carrier knew of CWA's organizational activity. The restructured employee committees were used to make improvements in certain significant working conditions, such as the swap and attendance policies. Three adjustments to the swap policy, involving the issue of notice and trades, were made in July 1996, three months after CWA's application was filed. A month later the attendance policy was revised.	Also, during the critical period, new task forces were created to study other changes in employee policies. In addition, a change in the scope of a task force recommendation was made as a result of the PDO (paid days off) Task Force. As previously found by the Board, based on the investigating mediator's interview of employees who were a part of the roundtable process and who had participated in the pre-existing roundtables, it is evident that changes and improvements to working conditions, made through the roundtable processes during the critical period, improperly interfered with the freedom of choice of the employees participating in the election.

In determining that the Carrier's conduct during the critical period interfered with the employees' freedom of choice, the Board need not, and does not, rely on Carrier speech.7 Moreover, the Board's decision to authorize another re-run election is not based on the application of any of the five "initial guidelines" that were set forth in its 1997 decision.8

Nor will the guidelines be applied to the re-run election in this matter.9

C.

Turning to the issue of the election schedule, the Board finds no persuasive basis to delay carrying out an election that will permit the employees to express their choice regarding this matter. The Carrier's own recent communications to employees in the craft or class, which refer to the 1997 certification as "invalid," have accentuated the need to resolve the issue of representation for collective bargaining purposes, and to provide stability on the property.

The Carrier's contention that the CWA has obtained an advantage flowing from the 1997 certification is not persuasive. Any arguable advantage is offset by the Carrier's ready access to its employees. Since the Court of Appeals issued its decision, the Carrier has availed itself of the opportunity to communicate with its employees, consistent with that decision. Moreover, the Carrier remains in a position to have daily contact with the employees. The Board has expressed on numerous occasions its cognizance of the "unique power and authority which carriers possess in the workplace." Midway Airlines Corporation, 26 NMB 154 (1999); Express One International, 25 NMB 420 (1998); United Air Lines, Inc., 22 NMB 288 (1995); and Air Wisconsin, 16 NMB 235 (1989).

Based on the Board's accumulated expertise with regard to such matters, there is no convincing basis to conclude that US Airways is not in a position to promptly and effectively assert its case to the employees. In light of the potential confusion generated by the invalidation of an NMB certification, the Board finds that the statutory objective of the expeditious resolution of representation disputes supports a prompt re-run election in this case.10

D.

To the extent that it may be relevant to this matter, the Board finds "unusual or extraordinary circumstances" have been established and waives the bar contained in 29 C.F.R. § 1206.4(a). Finally, the Board finds that based on the election interference in this matter, the Carrier must provide updated addresses for CWA's use.

AUTHORIZATION OF ELECTION

The Board hereby orders an all-mail ballot election among Passenger Service Employees of US Airways. The list of eligible voters will be the same as that used in the last election in Case No. R-6435, with the exception of those individuals who have left the craft or class since that time. Pursuant to Section 11.2 of the NMB Representation Manual, the Carrier is hereby required to furnish, within five calendar days, a set of updated, alphabetized peel-off labels bearing the current addresses of those employees on the list of potential eligible voters. The Carrier is also required to furnish the NMB with a set of updated labels for CWA's use. At the same time, the Carrier also must provide the Board with an updated list of voters corresponding with the labels. Ballots will be mailed July 16, 1999, and the count will take place August 20, 1999. The attached "Notice" to employees explaining why a new election is being conducted will be sent to each employee's home address.

By direction of the NATIONAL MEDIATION BOARD.

Stephen E. Crable

Chief of Staff

Copy to:

Daniel M. Katz, Esq.

Ellen Ranzman, Esq.

James B. Coppess, Esq.

Betty Leach Hawkins, Esq.

Tom A. Jerman, Esq.

Robert A. Siegel, Esq.

NOTICE TO PASSENGER SERVICE EMPLOYEES

EMPLOYEES OF US AIRWAYS, INC.

The National Mediation Board held a re-run election in September 1997 so that Passenger Service Employees on US Airways could determine their choice of representative free from interference, influence and coercion from the Carrier. The Board previously found that US Airways had interfered with its employees' freedom of choice in an election held in January 1997. As the result of the re-run election, the Communications Workers of America (CWA), was certified to represent the employees.

On May 28, 1999, the Court of Appeals for the District of Columbia Circuit issued a decision which requires the Board to set aside the results of the re- run election on the basis that US Airways' right of free speech was "unconstitutionally restrained" during the re-run election. CWA subsequently filed a Motion requesting "an expedited re-run election." After reviewing submissions from CWA and the Carrier, the Board has determined that the Carrier's conduct during the original election, apart from any consideration of Carrier speech, interfered with the employees' choice of representative. US Airways, 26 NMB 323 (1999). Accordingly, the Board will again re-run the election using the following schedule.

BALLOTS WILL BE MAILED JULY 16, 1999. THE COUNT WILL TAKE PLACE AUGUST 20, 1999. THE DEADLINE FOR DUPLICATE BALLOT REQUESTS IS AUGUST 13, 1999. THE CORRECT ADDRESS FOR MAILING DUPLICATE BALLOT REQUESTS IS: NATIONAL MEDIATION BOARD, 1301 K STREET, NW., WASHINGTON, DC 20572. EMPLOYEES WITH ANY QUESTIONS SHOULD CALL (202) 692-5040.