29 NMB No. 14

December 14, 2001

Kevin J. Tourek, Esq.

Shawn E. Shearer, Esq.

Ms. Gaile M. Omori, Director, Human Resources

National Airlines, Inc.

6020 Spencer St.

Las Vegas, NV 89119

Mr. Robert Roach, Jr.

General Vice President

Mr. James Conley

Director of Organizing

David Neigus, Esq.

IAM&AW

9000 Machinists Place

Upper Marlboro, MD 20772

Re:	NMB Case No. R-6850

National Airlines, Inc/IAM

Gentlemen and Ms. Omori:

This determination addresses the appeal filed by National Airlines, Inc. (National or Carrier) of Investigator Benetta M. Mansfield's November 26, 2001, eligibility rulings. For the reasons set forth below, the Carrier's appeal is denied.

I.

On October 22, 2001, the International Association of Machinists and Aerospace Workers (IAM) filed an application to represent Fleet Service Employees on the Carrier. On October 29, 2001, the Carrier supplied the National Mediation Board (Board) with a List of Potential Eligible Voters. The Board authorized an election on November 1, 2001. On November 2, 2001, the Board notified the participants that challenges and objections were due November 9, 2001, and responses to the challenges and objections were due on November 16, 2001.

On November 9, 2001, the IAM challenged the eligibility of eight (8) individuals as not employed in the craft or class on the eligibility cut-off date. The IAM also stated that Ronald Krause should be added to the List of Potential Eligible Voters because he appealed his discharge to the Nevada Equal Rights Commission (NERC) and sought reinstatement with National.

On November 8, 2001, the Carrier responded. On the issues relevant to this appeal, the Carrier stated as follows: Melvin Davis, Michael Gill, Mark Leach, Maria Inman, Brett Stacey, and Rodney Thomas had offers of employment from National prior to the September 11, 2001, terrorist attacks. National stated that each of these individuals were hired as part- time employees with the Carrier and completed their training period on September 21, 2001, but due to the furloughs at National effective September 22, 2001, each received a Notice placing them on unpaid personal leave. National acknowledged that none of these individuals worked the line prior to the furloughs, but stated that they would have but for the events of September 11, 2001. National stated that Ronald Krause was discharged on August 30, 2001, was ruled ineligible for unemployment compensation, and did not file an age discrimination claim with NERC until after the eligibility cut-off date. National characterized Krause's NERC claim as frivolous.

In the eligibility rulings on November 26, 2001, Investigator Mansfield ruled that Davis, Gill, Leach, Inman, Stacey, and Thomas were ineligible to vote because the Railway Labor Act (RLA) defines an "employee" as "every person in the service of a carrier . . . who performs any work defined as that of an employee." The Investigator stated that the Board has consistently stated that employees who have not performed line functions as of the cut-off date are ineligible. Therefore, Mansfield ruled these individuals ineligible. Investigator Mansfield further ruled that Krause was eligible pursuant to Section 5.304 of the Board's Representation Manual (Manual), because Krause had appealed the discharge to a government agency of competent jurisdiction and no final resolution of that matter had been reached. Therefore, Krause was added to the List of Potential Eligible Voters.

On November 30, 2001, the Carrier appealed the Investigator's ruling on these issues. The IAM responded to the appeal on December 7, 2001. On December 12, 2001, the IAM "supplemented" its December 7, 2001, submission with a copy of Krause's charge of discrimination filed with NERC on December 11, 2001.

II.

A.

The Carrier appeals the Investigator's ruling on Davis, Gill, Leach, Inman, Stacey, and Thomas. National contends that the Investigator erred because "the normal standards for voter eligibility should not be applied as this is not a normal situation." National states that but for the September 11, 2001, terrorist attacks, these individuals would have worked the line. National notes that prior to September 11, 2001, it had confirmed offers of employment to each of these individuals and they received the same furlough as all other National employees with the same benefits and recall rights. National further states:

The operational and security impacts of September 11th were unprecedented and the Board should recognize these events as extraordinary circumstances. The events of September 11 are clearly a unique situation not faced by the NMB before. However, in prior cases the NMB has determined to allow exceptions to the rigid application of the eligibility rules where the result of that rigid application is not consistent with fairness or the purposes of the Act. See USAir, 16 NMB 63 (1988) (complete turnover in craft) and Piedmont Airlines, 9 NMB 41 (1981) (5 year delay between original and rerun election.)

National also appeals the Investigator's ruling that Krause is eligible. National states that Krause does not meet the standard in Manual Section 5.304. National states that Krause at no time appealed "his involuntary termination, request reinstatement or raise an age discrimination claim with representatives of the Company, including but not limited to his management team, Human Resources, Legal and/or the Chairman, President and CEO of National Airlines." National also contends that based on the information provided by the IAM, there is no evidence that Krause has requested reinstatement at National. Finally, National contends that in Krause's unemployment compensation claim, Krause listed "union harassment" as the reason for termination and never stated "age discrimination." Therefore, National states that the claim before NERC is made in bad faith.

B.

The IAM states that the Carrier's appeal should be denied. The IAM responds that the Investigator's ruling on Davis, Gill, Leach, Inman, Stacey, and Thomas should be upheld because these individuals did not perform line functions. The IAM further states that the citations to USAir and Piedmont, above, are inapposite because those cases involved a significant turnover in the craft or class due to the passage of several years between the cut-off date and the election period. The IAM notes that in this case, there is virtually no turnover in the craft or class. Finally, the IAM states that the events of September 11, 2001, provide no justification for departing from Board precedent.

Concerning Krause, the IAM states that National's appeal has no merit. The IAM notes that although the NERC form originally sent to the Board does not have a remedial section, reinstatement is a presumptive remedy for any Age Discrimination in Employment Act charge. The IAM also states that the Board has consistently stated it does not consider the merits of a discrimination claim pending before an agency authorized to process such claims.

III.

A.

National does not contend that the Investigator erred in her eligibility determination for Davis, Gill, Leach, Inman, Stacey, and Thomas. Instead, the Carrier argues that the extraordinary events of September 11, 2001, merit "exceptions to the rigid application of the eligibility rules." While the Board agrees that the events of September 11, 2001, were extraordinary, it does not agree that this merits reconsideration of the eligibility standards in this case. Although many employees were furloughed as a result of September 11, 2001, the furloughed employees, with the exception of these six individuals cited above who have never worked the line, are eligible.

The cases cited by the Carrier, USAir and Piedmont, above, do not provide support for National's request. Those cases stand for the proposition that the Board may alter the eligibility cut-off date in unique circumstances, such as when there is a lengthy delay between the investigation and the election, and when "less than a majority of the craft or class [would] be eligible to vote using the Board's normal procedures." USAir, 10 NMB 495 (1983). Indeed in the USAir decision cited by National at 16 NMB 63 (1988), the Board refused to change the cut-off date stating as follows:

An examination of this case reveals no unique circumstances which would warrant a change in the cut-off date. The time between the initial investigation and the Board's craft or class determination was approximately five and a half months. Also, the addition of 197 employees into a craft or class of approximately 3800 is not a substantial turnover and does not affect the rights of a majority of the craft or class to select a representative.

The Carrier's appeal of the Investigator's ruling on Davis, Gill, Leach, Inman, Stacey, and Thomas is denied.

B.

45 U.S.C. § 152, Ninth, provides, in part, as follows:

[I]n the conduct of any election for the purposes herein indicated the Board shall designate who may participate in the election and establish the rules to govern the election . . . .

The election "rules" established by the Board are set forth in 29 C.F.R. §§ 1206.1 through 1206.8, the Representation Manual, and Board Determinations. Section 1206.6 of the Board's Rules provides:

Dismissed employees whose requests for reinstatement account of wrongful dismissal are pending before proper authorities, which includes the National Railroad Adjustment Board or other appropriate adjustment board, are eligible to participate in elections among the craft or class of employees in which they are employed at time of dismissal. This does not include dismissed employees whose guilt has been determined, and who are seeking reinstatement on a leniency basis.

Section 1206.7 provides:

The rules and regulations in this part shall be liberally construed to effectuate the purposes and provisions of the Act.

Manual Section 5.304 states:

Ordinarily, discharged or terminated employees shall be ineligible unless the discharge is being appealed through the applicable grievance procedure or an action for reinstatement has been filed before either a court or a government agency of competent jurisdiction. An individual shall not be considered eligible if the grievance or court action has been finally acted upon and the discharge has been upheld prior to the count of ballots (see NMB Rules, Part 1206.6).

The Board has consistently held that terminated employees are eligible if their claims for reinstatement are still pending as of the scheduled date of the count. Virgin Atlantic Airways, Ltd. v. National Mediation Bd., 956 F.2d 1245 (2d Cir.1992), cert. denied, 506 U.S. 820 (1992); Air Canada v. National Mediation Board, 478 F. Supp. 615 (S.D.N.Y. 1979); America West Airlines, 23 NMB 174 (1996); Emery Air Charter, 18 NMB 387 (1994); Virgin Atlantic Airways, 15 NMB 179 (1988).

The IAM originally provided a NERC "Intake Inquiry Form," which initiates the NERC complaint process. During the appeal, the IAM provided the Age Discrimination in Employment Act charge filed by Krause with NERC on December 11, 2001. The charge specifically lists reinstatement with National, among other remedies. While the charge itself was not presented during the challenge and objection period, the process with NERC has been initiated, and the charge constitutes a status change pursuant to Manual Section 11.3. Therefore, Krause is eligible to vote and the Carrier's appeal is denied.

CONCLUSION

The record establishes that there is no basis to overrule the Investigator's rulings. Therefore, the Carrier's appeal is denied. The count will take place as scheduled at 2 p.m., Eastern Time, December 17, 2001.

By direction of NATIONAL MEDIATION BOARD.

Stephen E. Crable

Chief of Staff