27 NMB No. 107

September 8, 2000

Joseph Z. Fleming. Esq.

Ford & Harrison, L.L.P.

516 Ingraham Building

25 S.E. 2nd Avenue

Miami, FL 33131

Marc J. Esposito, Esq.

Ford & Harrison, L.L.P.

1275 Peachtree Street, NE.

Suite 600

Atlanta, GA 30309

Elizabeth A. Nadeau, Esq.

Assistant General Counsel

International Union of Operating Engineers

1125 17th Street, NW.

Washington, DC 20036

Timothy Gallagher, Esq.

Melvin S. Schwarzwald, Esq.

Schwarzwald, Rock & McNair

616 Bond Bldg., 1300 E. Ninth St.

Cleveland, OH 44114-1503

Re:	NMB Case No. R-6746

Air Logistics of Alaska

Gentlemen and Ms. Nadeau:

This determination addresses the Air Logistics of Alaska's (Air Logistics Alaska or Carrier) 1) motion to void election and 2) election interference allegations. For the reasons set forth below, the motion is denied and the Board finds there is no basis for further investigation. Therefore, the allegations are dismissed.

Procedural Background

On November 15, 1999, the Office and Professional Employees International Union (OPEIU) filed an application with the National Mediation Board (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 was not a carrier under the Railway Labor Act (Act), but a holding company for two separate carrier subsidiaries, Air Logistics, L.L.C., and Air Logistics 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 Alaska are separate carriers under the Act. The Board, therefore, ordered that the OPEIU's original application, which encompassed the employees at both carriers, be amended into two separate applications (NMB Case No. R-6715 for the Mechanics and Related Employees at Air Logistics, L.L.C., and NMB Case No. R-6730 for the Mechanics and Related Employees at Air Logistics Alaska). The Board provided four days during which the OPEIU could file additional authorization cards for the Air Logistics Alaska employees.

On January 24, 2000, OPEIU advised the Board that they were withdrawing the application in Air Logistics 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 International Union of Operating Engineers (IUOE) filed an application for the Mechanics and Related Employees at Air Logistics Alaska. The IUOE asked the Board to waive the one-year bar set forth in 29 CFR § 1206.4 (b)(3) due to "unusual and extraordinary circumstances." OPEIU, which intervened with an application, also argued for the waiver. The carrier opposed any waiver.

In Air Logistics of Alaska, Inc., 27 NMB 348 (2000), the Board found:

[T]his situation is the converse of that presented in International Total Services [20 NMB 537 (1993)]. 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.

Id. The Board ordered the application in this case docketed.

On April 27, 2000, Air Logistics Alaska asked the Board to reconsider its ruling waiving the one-year bar. The Carrier argued that the Board's actions essentially ignored the fact that the bar rule was intended to "prevent[ ] employees from continuously attempting to gain representation" citing United Airlines, Inc., 8 NMB 642, 652 (1981). The Carrier also contended that the Board made a material error of law in waiving the bar and also in issuing applications covering two carriers in the underlying representation dispute. The Carrier, expressly reserving its rights in connection with the issues involved in this matter, stated: "[T]he Board's sua sponte action, in 'administratively amending' the Offshore application not only exceeded the scope of its authority under the Railway Labor Act, but it violated the Carriers' statutory and constitutional rights as well."

On May 3, 2000, the Board issued a letter stating that the Carrier's motion was inappropriate and would not be considered. On May 10, 2000, the Carrier filed with the Board a "Notice Confirming Objection to the National Mediation Board's Refusal to Consider the Motion for Reconsideration and Proffer of Air Logistics of Alaska." The document did not request or demand that the Board take any action.

On May 18, 2000, the Board found a dispute existed and authorized an election with IUOE and OPEIU on the ballot. The ballots were mailed on June 6, 2000, and the count was scheduled for July 11, 2000.

On July 7, 2000, the OPEIU filed a request that the Board postpone the July 11, 2000, ballot count and impound the ballots pending the completion of the compliance process pursuant to Article XXI of the AFL-CIO Constitution.1 The OPEIU alleged extraordinary circumstances existed. On July 10, 2000, the Board issued a letter postponing the count and impounding the ballots until the Board could consider the issues raised by OPEIU's request. The Carrier and IUOE opposed OPEIU's request. On July 14, 2000, prior to the Board's issuance of a determination on the OPEIU's request, the OPEIU withdrew its request.

The count was rescheduled for July 21, 2000. Out of twenty-four eligible voters, the IUOE received fifteen votes and OPEIU received no votes. One vote was cast for an individual. The Board issued a Certification of the IUOE on July 25, 2000. Air Logistics of Alaska, 27 NMB 461.

On August 1, 2000, the Carrier filed a "Motion to Void Election Results or, in the Alternative, for Board Hearing on Union Interference." The Carrier asks the Board to void the election results, or, in the alternative, for a full investigation, including a hearing, of the election interference it alleges was committed by IUOE. On August 10, 2000, the IUOE responded. OPEIU did not respond.

Air Logistics Alaska's Position

Air Logistics Alaska contends as follows:

The Board's certification of IUOE in this case is the latest improper action taken by the Board in a series of actions involving Offshore, Air Logistics, L.L.C., OPEIU and IUOE. The procedural history of these cases demonstrates actions by the Board "exceeding its statutory authority and ignoring or disregarding its own rules at every turn in the road to accommodate the unions." The original administrative amendment was ultra vires and is now inexorably linked to the Board's waiver of the one-year bar. Thus, the bar should have precluded this election, and it should now be invoked to render the election a nullity.

In the alternative, the Board should conduct a hearing to investigate the IUOE's election misconduct. Attached to the IUOE's June 27, 2000, submission to the Board was a letter from IUOE Assistant General Counsel Elizabeth A. Nadeau to OPEIU Vice President Richard Lanigan. The Nadeau letter "obviously responds" to a communication from OPEIU, and the Nadeau letter "unmistakably addresses various charges by the OPEIU that the IUOE engaged in election misconduct, including charges that IUOE 'misled' and provided 'erroneous information' to the voters." This correspondence demonstrates that election misconduct occurred and, therefore, the Carrier has established a prima facie case of election interference.

IUOE's Position

IUOE responds as follows:

The Board should reject the Carrier's motion to void the election. The Board clearly acted within its delegated authority when it administratively amended the Offshore application into two applications and when it waived the one-year election bar. The Carrier's argument attempts to blur the distinction between the Board's initiation of a representation investigation and the Board's sua sponte administrative amendment of the Offshore application. In Railway Labor Executives Assn. v. National Mediation Board, 29 F.3d 655 (D.C. Cir. 1994), amended, 38 F.3d 1224 (D.C. Cir. 1994), cert. denied, 514 U.S. 1032 (1995) (RLEA v. NMB), the Court stated that the Board cannot initiate representation investigations, but in this case the investigations were initiated by applications from OPEIU in Offshore, and IUOE in Air Logistics Alaska.

The Board properly found that extraordinary circumstances justified waiver of the bar.

The Carrier's claim of election interference is frivolous and does not state a prima facie case. Air Logistics Alaska has presented no evidence. The Carrier's entire allegation is based on an "incorrect guess" regarding the contents of an OPEIU letter that the Carrier admits it has never seen. OPEIU's letter did not accuse IUOE of election misconduct. In his June 21, 2000 letter, OPEIU Vice-President Lanigan stated that "OPEIU organizers have been informed by the mechanics in the prospective bargaining unit that the IUOE has promised to appeal the Article XXI award." In response, IUOE denied the unsubstantiated rumor and further stated that since the IUOE local union had not given erroneous information about the finality of the Article XXI award, there was nothing for the IUOE to retract or correct.

Even if the Board were to assume that the IUOE informed voters that it would appeal the Article XXI award, that information would have no impact on the election process. The Board should dismiss the Carrier's allegations.

DISCUSSION

I. Motion to Void the Election Results

The Carrier moves the Board to void the election results. This motion does not appear to be an allegation of election interference pursuant to Section 14.0 of the National Mediation Board Representation Manual (Manual) or a Motion for Reconsideration pursuant to Section 17.0 of the Manual. Therefore, the motion is not properly raised. Nevertheless, the Board will address the merits of the Carrier's arguments.

The Carrier states that the Board committed a series of improper acts, beginning with its administrative amendment of the Offshore application into two applications.

Section 2, Ninth, of the Act authorizes the Board to investigate representation disputes which arise among a carrier's employees. Courts have interpreted the Act as giving the Board exclusive jurisdiction over representation questions. Switchmen's Union of North America v. National Mediation Board, 320 U.S. 297 (1943). It is equally well established that, with respect to those matters subject to the Board's authority, the determination of the particular investigative approach is wholly within the Board's discretion. As the U.S. Supreme Court stated in Railway Clerks v. Non-Contract Employees, 380 U.S. 650, 662 (1965), "Congress has simply told the Board to investigate and has left to it the task of selecting the methods and procedures which it should employ . . . ." The only limitation on the Board's broad authority in investigation are actions "made in excess of its delegated powers and contrary to a specific prohibition in the Act." Id. at 659-660.

In RLEA v. NMB, supra, the Court held that an investigation pursuant to Section 2, Ninth, of the Act had to be initiated by "employees." The Court held that the Board could not initiate a representation investigation on its own or at the behest of a carrier. There is no question that the OPEIU initiated the investigation by filing an application in the Offshore case; thus, the Carrier's citation to RLEA v. NMB is inapposite. The application covered Mechanics and Related Employees in "Offshore's" Gulf and Alaska locations. Immediately after the application was docketed, Offshore filed a statement that it was no longer a carrier but the holding company for two separate carriers. Had the Board been aware of any question as to the "carrier" status of Offshore, the application would not have been docketed and a pre-docketing investigation would have ensued.2

After an investigation, the Board found that Offshore was no longer a carrier, but the holding company for Air Logistics, L.L.C., based in the Gulf and Air Logistics Alaska. The original application covered both locations. Therefore, as if it had been a pre-docketing matter, the Board turned one docketed representation case into two.

Such action is fully within the Board's authority. The Board has repeatedly found two or more crafts or classes from a single application, and, thereafter, docketed separate representation cases. See, e.g., Dalfort Aerospace, L.P., 26 NMB 239 (1999). In Worldwide Flight Services, Inc., 27 NMB 93 (1999), the Board determined that "Ramp Service Employees" was not a proper craft or class and, therefore, certified the organization as the representative of the Fleet Service Employees. In the second Worldwide decision, Worldwide Flight Services, Inc., 27 NMB 96 (1999), the Board stated:

The investigation of the dispute concerning the remaining employees was assigned NMB Case No. R- 6716. This certification concerns these remaining Worldwide employees in the craft or class of "Mechanics and Related Employees."

Therefore, the Board acts fully within its authority when it determines a single application comprises two or more representation cases.

The Carrier also contends that the Board acted improperly when it waived the bar and docketed the Air Logistics Alaska application filed by IUOE and OPEIU in this case. There is no question that the Board's regulations permit waiver of the bar in "unusual" or "extraordinary" circumstances. As the Board and the Courts have repeatedly stated, the determination of unusual or extraordinary circumstances is within the discretion Congress granted to the Board under the Act. See International Brotherhood of Teamsters v. National Mediation Board, 107 L.R.R.M. 3038 (D.D.C. 1981); Fox River Valley Railroad, 20 NMB 430 (1993). The Board properly exercised its discretion by finding that unusual circumstances justified waiving the one-year bar and docketing the application in this case. International Total Services, 20 NMB 537 (1993).

Even assuming the Carrier's motion to void election is proper, the Board acted within its discretion. The Board did not act in an ultra vires or improper manner when it administratively amended the application or when it waived the one-year bar. The motion is, therefore, denied.

II. Allegations of Interference

Section 14.0 of the Manual provides, in part, as follows:

Allegations of election interference must state a prima facie case that the laboratory conditions were tainted and must be supported by substantial evidence in the form of affidavits and documents which is direct, credible and corroborative. Allegations of election interference not sufficiently supported by substantive evidence will not provide a basis for further investigation and will be dismissed.

The only evidence provided to support the interference allegation was a letter from IUOE Assistant General Counsel Nadeau to OPEIU Vice President Lanigan. The Carrier refers to the following language:

The OPEIU's allegation that the IUOE has promised the mechanics that it will appeal the Article XXI award is not true. IUOE Local 302 has not misled the workers about the finality of the Article XXI award. In light of the fact that the IUOE has not given erroneous information to the workers in the first instance, there is nothing for the IUOE to retract.

The Carrier states that this language alone demonstrates election misconduct occurred. Even if the Carrier's interpretation of the language in the letter were correct, it does not demonstrate any interference with the laboratory conditions. See United Air Lines, Inc., 22 NMB 288, 318 (1995) (insufficient evidence to find organization interfered with the election; communications containing "misrepresentations" were merely campaign rhetoric); Federal Express Corporation, 20 NMB 486, 535 (1993) (allegations that the union engaged in threats, bringing employees into the property for campaign purposes, and "misrepresenting carrier and Board policies" were not coercive). The comments alleged referred to possible misrepresentations of the Article XXI proceeding before the AFL-CIO. There is no evidence whatsoever that voters were improperly influenced or coerced. Moreover, the Carrier's interpretation is credibly denied by IUOE.

The Board finds that the Carrier has not supported any allegations of election interference.

CONCLUSION

The Carrier's motion to void the election is denied. The Carrier's submission does not support a prima facie case that the laboratory conditions were tainted. There is no basis for further investigation. The Carrier's request for a hearing is denied.

By direction of the NATIONAL MEDIATION BOARD.

Stephen E. Crable

Chief of Staff