28 NMB No. 69

April 26, 2001

Thomas H. Wilson, Esq.

Ashley Smith Zimmerman, Esq.

Christopher V. Bacon, Esq.

Counsels for Aeromexico

Vinson & Elkins, LLP

2300 First City Tower

1001 Fannin Street

Houston, TX 77002-6760

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-6747

Aeromexico/IAM&AW

Gentlemen and Ms. Smith Zimmerman:

This determination addresses the February 27, 2001, Motion for Reconsideration filed by Aeromexico (Carrier). The Carrier seeks reconsideration of the National Mediation Board's (NMB) February 23, 2001, decision finding that the laboratory conditions required for a fair election were tainted and ordering a re-run election. Aeromexico, 28 NMB 309 (2001). The NMB finds that Aeromexico's motion fails to state sufficient grounds to grant the relief requested.

I.

BACKGROUND

In Aeromexico, above, the NMB found, based upon the totality of the circumstances, that the Carrier's conduct, including "one-on-one" meetings with employees, a mandatory Town Hall meeting, video presentations, misrepresentation of NMB procedures, and post-election interviews with employees, tainted the laboratory conditions required for a fair election. The NMB ordered a re-run election using a "Laker" ballot.

On February 27, 2001, the Carrier filed a Motion for Reconsideration. The Carrier contends that it did not interfere with the election. Alternatively, the Carrier requests a "re-run election in the same manner of the original election."

On March 7, 2001, the International Association of Machinists and Aerospace Workers (IAM) responded stating that the Carrier's motion did not state a basis for reconsideration, was wholly without merit and should be denied.

On March 23, 2001, Aeromexico filed suit against the NMB in the United States District Court for the Southern District of Texas. Aeromexico's complaint and request for injunctive relief asserted that the NMB's February 23, 2001, decision ordering a "Laker" re-run election was "a punitive remedy." The Carrier claimed that,

[T]hese sanctions are being used to punish Aeromexico for exercising its Fifth Amendment right to due process (in preparing its defense to union charges after the first election) and its First Amendment right to free speech (in speaking out against unionization prior to the first election and in speaking with its employees in the ordinary course of business).

Aeromexico requested that the court issue an "order requiring the election be set aside, or . . . that the ballot used [in the re-run election] be the same as the prior election" and requested a preliminary injunction to prevent the mailing of the re-run election ballots.

Following oral argument on Aeromexico's request for injunctive relief, the court denied Aeromexico's motion. The court concluded that Aeromexico had failed to meet its burden to make a "substantial showing" that the NMB had violated Aeromexico's constitutional rights under the First and Fifth Amendments. The court found that Aeromexico "[had] not demonstrated a substantial likelihood of success on the merits of its case" and "[had] not persuaded the Court that permitting the election to proceed would create a substantial threat of irreparable injury to [Aeromexico]." Aerovias de Mexico, S.A. de C.V. v. National Mediation Board and International Association of Machinists and Aerospace Workers, CA No. H01-1013 (S.D. Tex. March 29, 2001.)

On April 6, 2001, Aeromexico requested dismissal of its suit without prejudice.

II.

A. Aeromexico's Position

The Carrier requests that the NMB reconsider its determination and find that Aeromexico did not interfere with the election. In the alternative, the Carrier "requests that the [NMB] reconsider its Order for a 'Laker' ballot and order a re-run election in the same manner as the original election."

Aeromexico disputes the NMB's finding that the Carrier interfered with the election when Carrier representatives interviewed employees concerning the IAM's election interference allegations. The Carrier says that "Aeromexico did nothing improper when it interviewed employees regarding the union's allegations." Aeromexico asserts that the NMB's actions violated its constitutional rights to due process under the Fifth Amendment. The Carrier says that it followed the safeguards described in Johnnie's Poultry Co., 146 NLRB 770 (1964)(enf. denied 344 F.2d 617 (8th Cir. 1965).) (Johnnie's Poultry), by focusing its investigation and the employee interviews solely on the IAM's election interference allegations. The Carrier says the NMB created a rule that would prohibit questioning of employees and thereby violated Aeromexico's constitutional rights to free speech under the First Amendment.

Aeromexico disputes the NMB's finding that the May 17, 2000, Town Hall meeting and subsequent video presentations were mandatory meetings. Aeromexico asserts that the NMB's finding of election interference, based on the videotapes shown at the Town Hall meeting and other meetings, "violated Aeromexico's Constitutional rights under the First Amendment." Aeromexico also disputes the NMB findings that the videotapes, which were based on the National Labor Relations Act (NLRA) and Mexican labor relations law, constituted material misrepresentations of the Railway Labor Act (RLA).

Aeromexico also contends that the NMB's finding that management officials held "one-on-one" meetings with employees during the election violated Aeromexico's First Amendment rights. The Carrier says when management officials met with employees, "the supervisors generally limited themselves to asking employees if they had any questions" and these encounters "were actually conversations held in front of other [employees]." Aeromexico argues that "by characterizing Aeromexico's speech and conduct as 'unlawful interference' the NMB has violated Aeromexico's First Amendment rights."

Finally, the Carrier concedes that a management official misstated the date that voting was over at the May 17, 2000, Town Hall meeting. This was an unintentional misstatement, Aeromexico says, and it was the only misstatement regarding voting procedures the management official made. The Carrier asserts that there is no evidence that the misstatement impacted the voting and the correct information was posted by Aeromexico and appeared in the NMB's ballot instructions. The Carrier concludes, "[a]t most, this error would justify a rerun election conducted in the same manner of the original election and not a Laker ballot which is intended to remedy 'egregious' levels of interference."

B. IAM's Position

The IAM states that Aeromexico's motion for reconsideration is wholly without merit and should be denied. The IAM argues that the NMB's finding of election interference, based on Aeromexico's post-election interviews of employees, was correct. The Carrier's defense of these interviews, based on the NLRB case, Johnnie's Poultry, is "misplaced" according to the IAM. Quoting Johnnie's Poultry, the IAM argues, that an employer may interrogate employees "where such interrogation is necessary in preparing the employer's defense for trial of the case." (emphasis supplied). In this case, the IAM argues, the NMB was investigating the IAM's allegations of election interference and no trial was to be conducted.

The IAM contends the evidence fully supports the NMB's finding that the Carrier's post-election interviews were coercive, violated the secrecy of the ballot, and interfered with the NMB's investigation. Furthermore, the IAM says, the NMB's determination that Aeromexico's post-election interviews were inherently coercive does not violate the Carrier's constitutional due process rights.

The IAM refutes Aeromexico's claim that the May 17, 2000, Town Hall meeting was not mandatory. The employees believed that the meeting was mandatory and feared that if they did not attend, Aeromexico would know how they voted, the IAM says. The IAM argues that it is undisputed that Aeromexico misrepresented the date when the voting was over. In addition, the videos at the Town Hall and other meetings "focused exclusively on laws other than the RLA, including the National Labor Relations Act, the Federal Labor Relations Act and Mexican labor relations law." The IAM argues that Aeromexico misrepresented the significant differences between the RLA and other statutory schemes. In particular, quoting US Airways, 24 NMB 354 (1997), the IAM asserts that "an organization is only free to strike when the NMB has found that all of the Act's procedures have been exhausted. Only the NMB can free the parties to resort to self help."

The IAM notes that Aeromexico does not dispute that management officials held numerous "one-on-one" meetings with employees. The IAM disputes the Carrier's claim that these meetings were permissible because some meetings, but not all, occurred when many other employees were around. Regardless of the "layout" the IAM says, these meetings were not group discussions and management officials used the meetings to convey anti-union messages, at times, against the employee's will. These "one-on-one" meetings, the IAM argues, "were a part of a coordinated, systematic effort by Aeromexico to influence the outcome of the election."

Based on the totality of the circumstances, the IAM believes that the NMB's order for a "Laker" ballot in the re-run election is "sound and completely warranted" due to the Carrier's substantial interference with laboratory conditions.

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 NMB grants relief on motions for reconsideration in limited circumstances. As the NMB 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.

The investigator conducted an extensive election interference investigation. The NMB considered the evidence and the Carrier and IAM submissions, requested additional documentation from the Carrier, and conducted an on-site investigation.	The NMB has reviewed the Carrier's motion for reconsideration and finds it insufficient to grant the relief sought.

A. Carrier Post-election Interviews

Relying on Johnnie's Poultry, an unfair labor practice case decided under the NLRA, Aeromexico claims that it did nothing improper when it interviewed employees regarding the union's allegations of election interference. The Carrier's reliance on Johnnie's Poultry is misplaced. In Metroflight, Inc. v. National Mediation Board, 820 F. Supp. 288, 292 (N.D. Tex. 1992), the Court stated:

In Trans World Airlines v. Independent Federation of Flight Attendants, 489 U.S. 426, 109 S. Ct. 1225, 1233, 103 L. Ed. 2d 456 (1989) the Supreme Court warned against "importing wholesale into the railway labor arena" law developed under the NLRA. "Even rough analogies must be drawn circumspectly with due regard for the many differences between the statutory schemes. . . ." Employers governed by the RLA have "a more limited labor role" than those under the NLRA. International Ass'n of Machinists (IAM) v. Continental Airlines, Inc., 754 F. Supp. 892, 896, n. 6 (D.D.C. 1990). Thus, what is permissible campaigning under the NLRA may be unlawful interference under the RLA.

Based on the investigation, the NMB found that Aeromexico's post-election interviews of members of the craft or class interfered with laboratory conditions, violated the secrecy of the ballot, coerced employees in the exercise of their rights, and interfered with the NMB's investigation. There is no support for Aeromexico's claim that the NMB's determination concerning these post-election interviews violated its First or Fifth Amendment rights. Horizon Air Industries, Inc. v. NMB, 232 F.3rd 1126, 1134-39 (9th Cir. 2000) (The NMB's finding was not based solely on Carrier speech and therefore did not violate the First Amendment. The Carrier's Fifth Amendment rights were not violated by requiring it to post a notice.); United States v. Feaster, 410 F.2d 1354, 1366 (5th Cir. 1969) (The NMB's function is investigatory and not adjudicatory. Therefore, the full panoply of judicial procedures need not be used and due process did not require a hearing.); United States v. Feaster, 376 F.2d 147, 150 at fn. 3 (5th Cir. 1969) (The NMB acts in the capacity of a referee and there is no requirement of a hearing at any stage of the matter.); Brotherhood of R. & S.S. Clerks, etc. v. Assoc. For the Benefit of Non-Contract Employees, 380 US 650, 662 (1965) (Congress has simply told the NMB to investigate and has left to the NMB the task of selecting the method and procedures which it should employ in each case.)

Aeromexico's motion for reconsideration on this issue merely reasserts factual and legal arguments previously presented to the NMB.

B. Town Hall Meeting and Videos

Aeromexico disputes the NMB's determination that the Town Hall meeting and subsequent video presentations were mandatory meetings and that the video presentations constituted material misrepresentations of the RLA. Aeromexico's arguments were raised previously in the NMB's initial consideration of this case. Aeromexico's motion for reconsideration on this issue merely reasserts factual and legal arguments presented to the NMB.

C. "One-on-one" Meetings

Aeromexico disputes the NMB's determination that the "one-on-one" meetings between several management officials and individual employees in the craft or class constituted inherently coercive meetings, despite long standing NMB precedent. Continental Airlines, 27 NMB 463, 479-480 (2000); Key Airlines, 13 NMB 153, 163 (1986); Zantop International Airlines, Inc., 6 NMB 834 835-836 (1979); Allegheny Airlines, 4 NMB 7, 13 (1962).

Aeromexico disagrees with the NMB's conclusions. The Carrier's motion for reconsideration on this issue merely reasserts factual and legal arguments previously presented to the NMB.

D. Misrepresentation of NMB Processes

The NMB determined that the laboratory conditions required for a fair election were tainted based on the totality of the circumstances, including the Carrier's "one-on-one" meetings with employees, the mandatory Town Hall meeting and video presentations, the misrepresentation of NMB procedures, and the post-election interviews with employees. To remove the taint on laboratory conditions, the NMB has ordered a "Laker" ballot re- run election. The investigation established that the NMB's choice of a "Laker" ballot re-run election is supported by the egregious and substantial Carrier interference in this case.

IV.

CONCLUSION

The Carrier may disagree with the NMB's assessment of the evidence, but there is ample evidentiary support for the NMB's conclusions and determination. Aeromexico has failed to state the points of law or fact the NMB overlooked or misapplied and merely reasserts arguments in its previous submissions. The NMB finds that Aeromexico's arguments in support of the motion are without merit. Therefore, the motion for reconsideration is denied.

By direction of the NATIONAL MEDIATION BOARD.

Stephen E. Crable

Chief of Staff