28 NMB No. 44

January 12, 2001

Mr. Richard W. Meyer, Jr.

Vice President-Human Resources

Ms. Eileen O'Rourke, Manager

Employee Relations

American Trans Air, Inc.

7337 West Washington Street

Indianapolis, IN 46231-1300

Peter J. Petestch, Esq.

Ford & Harrison, LLP

1300 19th Street, NW, Suite 700

Washington, DC 20036

Mr. R.T. Buffenbarger, Int'l President

Mr. Robert Roach, General Vice President

David Neigus, Esq.

International Association of Machinists

and Aerospace Workers

9000 Machinists Place

Upper Marlboro, MD 20772-2687

Re: NMB Case No. R-6757

American Trans Air, Inc.

Gentlemen:

This determination addresses the December 22, 2000, Motion for Reconsideration filed by American Trans Air, Inc. (ATA or Carrier). ATA seeks reconsideration of the National Mediation Board's (Board) December 21, 2000, decision finding that the laboratory conditions required for a fair election were tainted and ordering a re-run election. American Trans Air, Inc., 28 NMB 163 (2000). The Board finds the ATA's request fails to state sufficient grounds to grant the relief requested.

I.

BACKGROUND

In American Trans Air, above, the Board found that the Carrier's announcement of a wage increase and shift differentials during the laboratory period and the timing of that announcement tainted the laboratory conditions for a fair election. The Board ordered a re-run election using its standard ballot.

On December 22, 2000, the Carrier filed a Motion for Reconsideration. In the motion, ATA contends that the Board failed to follow "Board procedures and standards" in the Board's Representation Manual (Manual) Section 14.0 "requiring credible, substantive evidence to support an interference charge." Upon reconsideration, ATA requests the Board dismiss the charge by the International Association of Machinists and Aerospace Workers (IAM) or alternatively, conduct a new investigation "assigning different investigators."

On January 3, 2001, the IAM responded stating that the Carrier's motion does not state a basis for reconsideration, and should be denied. ATA replied to the IAM's response on January 4, 2001.

II.

A. ATA's Position

ATA argues that the Board improperly concluded that the laboratory conditions attached on May 1, 2000 based on the finding that lower level supervisors were aware of the IAM's organizing campaign at that time; and the finding that ATA anticipated an IAM organizing campaign. ATA states the Board erred in its conclusion because there is no evidence that the supervisors communicated this information to upper level management, and ATA's anticipation of a possible IAM campaign is not proof of knowledge.

ATA also contends that the Board improperly found that the pay raise and shift differentials tainted laboratory conditions. The Carrier claims that the Board bases its findings on "common talk" and speculation and there is no "substantive evidence whatsoever" to support the Board's conclusion. As to the shift differentials, ATA contends that "the Board had no jurisdiction to investigate this matter and did not investigate this matter."

The ATA reply raises new arguments. Without citing any Board decisions, the Carrier argues that the Board improperly substituted its business judgment for that of the Carrier regarding the pay raise. The Carrier also contends that the Board's findings go "beyond the scope of the IAM's charge." ATA argues that under Manual Section 14.0, "the Board only has authority to investigate written allegations of election interference and, therefore, does not have discretion to exceed the scope of those written allegations in its investigation or determination."

B. IAM's Position

The IAM states that the ATA's motion does not state a basis for reconsideration and should be denied. The IAM contends that the Carrier restates previous arguments but has not demonstrated "material error of fact or law." The IAM argues that the Board only grants reconsideration in extraordinary circumstances which the Carrier has failed to demonstrate.

The IAM states that it did raise shift differentials in its interference claim. Finally, the IAM states that the Board did not substitute its business judgment for that of ATA, "but rather analyzed the evidence and made a determination consistent with its own precedent on a defense raised by ATA."

III.

DISCUSSION

Manual Section 17.0 provides:

Motions for Reconsideration of Board decisions concerning . . . 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 two (2) business 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 has reviewed the Carrier's submissions in support of its motion and finds them insufficient to grant the relief sought.

Board investigators conducted an extensive investigation of election interference. The Board considered the evidence sent in by the Carrier and the IAM, requested additional documentation from the Carrier, and conducted on site investigations in Chicago and Indianapolis.

A. Laboratory Conditions

ATA argues that the Board improperly found that laboratory conditions began on May 1, 2000. The Carrier argues that the Board cannot base its finding upon lower level supervisors' knowledge of the organizing campaign without finding that this information was conveyed to upper management. ATA also argues that the Board found that ATA should have anticipated the IAM's campaign. ATA does not state any points of law or fact which the Board overlooked or misapplied.

B. Pay Raise and Shift Differential

ATA argues that there was no evidentiary basis for the Board's conclusion that the announcement of the pay raise on July 12, 2000, tainted laboratory conditions. ATA also contends that Board should not have investigated the shift differential issue because the IAM's allegations of election interference did not raise the issue. ATA further states that the Board made findings on the shift differential issue without conducting an investigation of the issue. Finally, ATA argues that the Board should grant its motion because the Board improperly substituted its business judgment for that of the Carrier.

The Board grants relief upon motions for reconsideration in limited circumstances. As the Board stated in Virgin Atlantic Airways, 21 NMB 183, 186 (1994):

The Board recognizes the vital importance of the consistency and stability of the law as embodied in . . . NMB determinations . . . . Accordingly, the Board does not intend to reverse prior decisions on reconsideration except in the extraordinary circumstances where, in its view, the prior decision is fundamentally inconsistent with the proper execution of the NMB's responsibilities under the Railway Labor Act.

ATA's arguments in support of the motion are without merit. Although the Carrier may disagree with the Board's assessment of the evidence, there is ample evidentiary support for its conclusions. As the Board stated in Metroflight, Inc., 19 NMB 8, 11 (1991):

The Board recognizes that some of the evidence before it was "conflicting." It is the Board's responsibility in its investigations to assess the evidence before it, and to resolve conflicts over facts. In this case, the Board considered all the evidence and arguments presented by both the carrier and the IBT, as well as the evidence garnered in its additional investigation, and concluded that the carrier had interfered with its employees' freedom of choice. The Board's conclusion was also based upon its evaluation of the evidence viewed in its appropriate context.

In its August 18, 2000, interference allegations, the IAM cited ATA's memorandum announcing a "significant general wage increase as well as pending implementation of a shift differential." Therefore, the Carrier's statement that the IAM did not include the announcement of the shift differentials in its interference allegations is without merit. Moreover, during interference investigations, the Board often discovers and addresses additional facts which are not alleged. See, e.g., Era Aviation, 27 NMB 321, 342 (2000). ATA argues that the Board improperly substituted its business judgment for that of the Carrier. The Board concluded that ATA had not demonstrated clear and convincing business justification for announcing the pay raise and shift differentials on July 12, 2000. The mere reassertion of a legal argument is insufficient to obtain relief in a motion for reconsideration.

IV.

CONCLUSION

The Board has reviewed the ATA and the IAM submissions. ATA has failed to state the points of law or fact the Board overlooked or misapplied and merely reasserts arguments in its previous submissions. Therefore, the motion for reconsideration is denied.

By direction of the NATIONAL MEDIATION BOARD.

Stephen E. Crable

Chief of Staff