25 NMB NO. 3

NMB CASE NOS. R-6527

and R-6528

MOTION FOR

RECONSIDERATION - DENIED

October 3, 1997

On September 8, 1997, Frontier Airlines1 filed a Motion for Reconsideration of the Board's determination that it does not, at this time, comprise a single transportation system with Western Pacific Airlines (WestPac). Frontier Airlines, 24 NMB 635 (1997). In that determination, the Board authorized elections, with the International Brotherhood of Teamsters (IBT) on the ballot, among Stock Clerks and Mechanics and Related Employees employed by Frontier Airlines.

I.

On July 3, 1997, the IBT filed applications seeking to represent Mechanics and Related Employees and Stock Clerks employed by Frontier Airlines. During the Board's investigation of the IBT's applications, Frontier asserted that, as a result of its imminent merger with WestPac, it comprised a single transportation system with WestPac. On August 29, 1997, the Board found that, "[a]t present, Frontier Airlines is a separate system for representation purposes under the Railway Labor Act." Frontier Airlines, 24 NMB at 645 (1997).

II.

Frontier's Motion is based upon its assertion that the Board materially erred, in direct contradiction of established Board policy, when it found Frontier constitutes a separate transportation system. According to Frontier, the Board has recognized that two carriers may operate as a single transportation system where they operate under separate FAA operating certificates. Additionally, Frontier asserts that the Board's conclusion materially contradicts the holding in TWA/Ozark, 14 NMB 218 (1987), because the Board should examine whether the carriers "will operate" as a single system. Frontier further asserts that the Board's determination contradicts the policies established by the Procedures for Handling Representation Issues Resulting from Mergers, Acquisitions or Consolidations in the Airline Industry, 14 NMB 288 (1987) (Airline Merger Procedures).

Finally, Frontier asserts that the Board erred in that the Board "appears to be stating that the Frontier elections and the merger may very well result in partially represented crafts or classes, and that it will allow those crafts or classes to remain partially represented absent any representation petition by the employees or their representative." Frontier notes that partial representation should be avoided because it does not foster stable labor relations.

The IBT opposes Frontier's Motion for Reconsideration asserting that the Board's determination is consistent with the Act and the Board's procedures, including its Airline Merger Procedures. Since the operational merger of Frontier and WestPac may not occur for some time, the IBT urges the Board to continue to process its applications expeditiously.

III.

Section 18.0 of the Board's Representation Manual provides that when the Board considers a Motion for Reconsideration:

[T]he 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 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. . . .

IV.

Frontier has not demonstrated a material error of law or fact.

A.

Frontier asserts that the Board erred materially by finding that no operational merger had occurred. Apparently, Frontier interprets the Board's finding that it and WestPac continue to operate under separate FAA certificates as the Board's sole rationale for its determination that the two carriers operate separately. However, the Board found, "based upon the facts and circumstances of this case" that Frontier and WestPac "continue to operate as separate carriers and the merger remains prospective". Frontier Airlines, 24 NMB at 644. The Board found further that if Frontier and WestPac completed the steps outlined in their Merger Transition Plan, they would become a single transportation system. Many of those steps, however, are prospective.

The Board based its finding on its consideration of the factors cited in TWA/Ozark, 14 NMB 218 (1987), as indicia of a single transportation system. Frontier argues that the Board erred in its application of the TWA/Ozark factors because the Board should examine whether Frontier and WestPac "will operate" as a single transportation system, and such an examination would lead the Board to answer that query affirmatively. The Board examined the TWA/Ozark factors and found that Frontier and WestPac would become a single transportation system if and when they completed the steps leading up to their merger. For these reasons the Board declines to alter its finding that Frontier and WestPac operate currently as separate systems.

B.

Frontier also asserts that the Board violated its Airline Merger Procedures which provide that the Board will "endeavor to issue its decision on or before the time of the operational merger." 14 NMB at 391.2

Under the Airline Merger Procedures, the Board has timed its single transportation system determinations to coincide with the merger date. The Board's single transportation system determinations were made only when consummation of the transaction was imminent. For example, on June 30, 1992, the Board found Allegheny Commuter Airlines and Pennsylvania Airlines would become a single transportation system on July 1, 1992. Pennsylvania Airlines, Inc./Allegheny Commuter Airlines, 19 NMB 368 (1992). Similarly, on May 31, 1991, the Board found Command Airways would become a single transportation system with Nashville Eagle on June 1, 1991. Command Airways, Inc./Nashville Eagle, 19 NMB 372 (1991).

The Board conducts representation elections based upon the system at the time of the investigation. Likewise, the Board examines the likelihood that the transaction will go forward. The Board does not issue single carrier determinations where the prospect that a new system will be created is too far in the future to be certain. In representation cases, the Board is concerned with the present system as opposed to a speculative future system. SAPADO I, 19 NMB 279, 281 (1992). The Board's determination that Frontier continues to operate as a separate system at the time of the investigation was consistent with Board policy and practice.

V.

Frontier's assertion that the Board's determination could result in partial representation which should be avoided "because it does not foster stable labor relations" is not sufficient justification for the NMB to exercise its discretion to modify the decision because it is important to the public interest. In Virgin Atlantic Airways, 21 NMB 183, 186 (1994), the Board stated that it does not intend to reverse its decisions on reconsideration, "except in the extraordinary circumstances where . . . the prior decision is fundamentally inconsistent with the proper execution of the NMB's responsibilities under the Railway Labor Act". The Board finds no extraordinary circumstances in this case.

CONCLUSION

After consideration of the arguments raised by Frontier, the Board declines to reverse its determination in Frontier Airlines, 24 NMB 635 (1997). Accordingly, the ballot count shall take place as scheduled on October 6, 1997.

By direction of the National Mediation Board.

Stephen E. Crable

Chief of Staff