In the Matter of the

Application of the

INTERNATIONAL UNION OF OPERATING ENGINEERS

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

involving employees of

AIR LOGISTICS OF ALASKA

27 NMB No. 64

CASE NO. R-6746

DETERMINATION- DOCKETING OF APPLICATION

April 25, 2000

This decision addresses an application filed by the International Union of Operating Engineers (IUOE) alleging a representation dispute among Mechanics and Related Employees of Air Logistics of Alaska. The Office and Professional Employees International Union (OPEIU) has also filed an application to represent the Mechanics and Related Employees of Air Logistics of Alaska. For the reasons set forth below, the National Mediation Board (Board or NMB) waives the one-year bar under 29 CFR § 1206.4 (b)(3) and dockets the application filed by IUOE as NMB Case No. R-6746. The Board permits OPEIU to be an intervenor in this investigation.

PROCEDURAL BACKGROUND

On November 15, 1999, OPEIU filed an application with the Board pursuant to 45 U.S.C. § 152, Ninth, alleging a representation dispute among Mechanics and Related Employees of Offshore Logistics, Inc. (Offshore). Offshore contended that it is not a carrier under the Act but is a holding company for two separate carrier subsidiaries, Air Logistics, L.L.C. and Air Logistics of Alaska.

In Offshore Logistics, Inc., 27 NMB 178 (2000), the Board agreed with Offshore and found that Air Logistics, L.L.C. and Air Logistics of Alaska are separate carriers under the Act. The Board, therefore, ordered that the OPEIU's original application be amended into two separate applications (Case No. R-6715 for the Mechanics and Related Employees at Air Logistics, L.L.C. and Case No. R-6730 for the Mechanics and Related Employees at Air Logistics of Alaska). The Board provided four days during which the OPEIU could file additional authorization cards for the Air Logistics of Alaska employees. On January 24, 2000, OPEIU advised the Board that they were withdrawing its application for the Mechanics and Related Employees at Air Logistics of Alaska. Therefore, in Air Logistics of Alaska, Inc., 27 NMB 194 (2000), the Board dismissed the application and "closed its file subject to Part 1206.4(b) of the NMB Rules."

On April 3, 2000, the IUOE filed an application for the Mechanics and Related Employees at Air Logistics of Alaska. The IUOE also filed a cover letter which argued that the Board should waive the one-year bar set forth in 29 C.F.R. § 1206.4(b)(3) due to the "unusual and extraordinary circumstances" in this matter.

On April 5, 2000, the Board asked the Carrier to submit its position on this matter and sent a copy of this letter to the OPEIU. On April 12, the OPEIU responded, and on April 17, the Carrier responded.

CONTENTIONS

IUOE

The IUOE argues that a waiver is applicable in this matter because the circumstances satisfy the "well-established exception" to the one-year bar rule following dismissal of an application. The IUOE contends that the Board has repeatedly found where a single carrier or system is involved, the one-year bar following dismissal of an application is waived. IUOE states that here, as in International Total Services, 20 NMB 537(1993) and The Central of Georgia Railroad, 16 NMB 5 (1988), the Board's determination concerning "the scope of the system rendered the showing of interest insufficient to support the pending application." Citing the procedural history in this matter, IUOE states that this case presents "unusual or extraordinary circumstances" that justify the waiver.

OPEIU

The OPEIU contends that if the Board decides to waive the bar for the IUOE's application, the bar should additionally be waived for the OPEIU's intervening application to promote employees' freedom of choice in deciding whether to be represented. OPEIU states that within one week of withdrawing the Air Logistics of Alaska matter, it received additional authorization cards from nearly all of the Alaska-based employees in the Mechanics and Related craft or class. OPEIU agrees with IUOE that the bar should be waived in this case. Finally, OPEIU notes that given the unusual circumstances in the Board's determination in Offshore Logistics, supra, as to the identity of the carriers, the Board should have administratively docketed that matter as a "CR" case and, in those circumstances, no bar would have been applied to OPEIU's withdrawal of the Air Logistics of Alaska case.

AIR LOGISTICS OF ALASKA

The Carrier is opposed to any waiver of the one-year bar. The Carrier contends that OPEIU was well-aware that the Board was considering whether Offshore Logistics was a carrier under the Act and, therefore, had a two-month period of time to obtain additional authorization cards from Air Logistics of Alaska employees prior to the Board's ruling in Offshore Logistics, supra.

The Carrier also states that the decisions cited by the IUOE are inapposite and do not justify "unusual or extraordinary circumstances." The Carrier states that in International Total Services, supra, the organization mistakenly attempted to organize a group of employees that were part of a system-wide craft or class and therefore, was unaware of the showing of interest that would be required for an election. There, the Carrier contends, the Board waived the dismissal bar rather than deny the employees throughout the system the ability to seek representation for one year. Here, the Carrier states, the circumstances are different because the OPEIU's initial application covered the Air Logistics of Alaska employees and when the Board administratively amended OPEIU's application into two applications, it provided OPEIU with a period of time within which to obtain additional authorization cards.

The Carrier also argues that the bar rules are meant to prevent employees "from continuously attempting to gain representation on the theory that, if they wanted to be represented, they would sign authorization cards and vote for representation." United Airlines, Inc., 8 NMB 642, 651 (1981). The Carrier contends that the Board's acceptance of this application would result in a continuous attempt to gain representation and affect the stability in labor relation intended by the Act.

FINDINGS OF LAW

Determination of the issues in this case is governed by the Railway Labor Act, as amended, 45 U.S.C. §§ 151-188. Accordingly, the Board finds as follows:

I.

Air Logistics of Alaska is a common carrier by air as defined in 45 U.S.C. § 181.

II.

IUOE and OPEIU are labor organizations and/or representatives as provided in 45 U.S.C. § 152, Ninth.

III.

45 U.S.C. § 152, Fourth, gives employees subject to its provisions "the right to organize and bargain collectively through representatives of their own choosing. The majority of any craft or class of employees shall have the right to determine who shall be the representative of the craft or class for the purposes of this chapter."

IV.

45 U.S.C. § 152, Ninth, provides that the Board has the duty to investigate representation disputes and shall designate who may participate as eligible voters in the event an election is required.

DISCUSSION

29 C.F.R. § 1206.4, states in relevant part, as follows:

Except in unusual or extraordinary circumstances, the National Mediation Board will not accept an application for investigation of a representation dispute among employees of a carrier:

. . . .

(b) For a period of one (1) year from the date on which:

. . . .

(3) The Board dismissed a docketed application after the applicant withdrew an application covering the same craft or class of employees on the same carrier after the application was docketed by the Board.

As set forth in the "Procedural History," the OPEIU originally filed an application for the Mechanics and Related Employees craft or class at Offshore Logistics, which included the employees at both Air Logistics, L.L.C. and Air Logistics of Alaska. The Board had previously exercised jurisdiction over Offshore Logistics. See Offshore Logistics, Inc., 24 NMB 624 (1997). Offshore Logistics responded to the application stating that due to a December 1997 restructuring, it was no longer a carrier but the holding company for two separate carriers, Air Logistics, L.L.C. and Air Logistics of Alaska. After conducting an investigation, the Board agreed that Offshore Logistics was no longer a carrier under the Act. The Board further stated:

The Board, therefore, orders that the OPEIU's application be administratively amended into two applications: Case No. R-6715, alleging a representation dispute among Mechanics and Related Employees of Air Logistics, L.L.C., and Case No. R-6730, alleging a representation dispute among Mechanics and Related Employees of Air Logistics of Alaska, Inc.

Offshore Logistics, 27 NMB 178, 188 (2000). The Board realized the difficulty presented to the OPEIU by administratively making one application into two applications and, therefore, stated, "[u]ntil an applicable list and signature samples are received by the Investigator in compliance with the above requirements, the Investigator will continue to accept additional authorization cards." Id. The OPEIU was unable to obtain sufficient authorization cards among the employees at Air Logistics of Alaska and, therefore, on January 24, 2000, OPEIU advised the Board that they were withdrawing the application for the employees at Air Logistics of Alaska. The Board dismissed the application and "closed its file subject to Part 1206.4(b) of the NMB Rules." Air Logistics of Alaska, Inc., 27 NMB 194 (2000).

The Board generally does not waive the bar without a demonstration of "unusual circumstances." Such circumstances have included mergers or changes in systems, or dismissal of an application which does not encompass the appropriate craft or class. See International Total Services, supra.

The Board finds this situation is the converse of that presented in International Total Services, supra. There, the applicant organization had filed for less than a system-wide craft or class. The Board waived the bar to permit the organization to file for a system-wide craft or class. Here, OPEIU filed an application for the employees at Offshore Logistics, not at Air Logistics of Alaska. The Board "administratively amended" OPEIU's application into two applications, neither of which the OPEIU originally filed. The Board found that it was actually two crafts or classes at two separate carriers, neither of which was encompassed by the original application. In this case, the Board concludes that there are unusual or extraordinary circumstances that permit the waiver of the one-year bar.

CONCLUSION

IUOE's application is docketed as NMB Case No. R-6746 and a docketing letter will be issued. The dismissal of the OPEIU's application in Air Logistics of Alaska, Inc., supra, does not subject the instant application to the bar in 29 C.F.R. § 1206.4. Assuming a sufficient showing of interest is found, IUOE and OPEIU will appear on the ballot. This investigation will continue on the docketed application consistent with the Board's procedures.

By direction of the NATIONAL MEDIATION BOARD.

Stephen E. Crable

Chief of Staff

Copies to (See Attached):

Copies to:

Marc J. Esposito, Esq.

Joseph Z. Fleming, Esq.

Elizabeth A. Nadeau, Esq.

Melvin S. Schwarzwald, Esq.

Timothy Gallagher, Esq.

Mr. Paul Bohelski