25 NMB No. 45

January 28, 1998

Robert A. Siegel, Esq.

O'Melveny & Myers

400 South Hope Street

Los Angeles, CA 90071-2899

Re: NMB Case No. R-6444

America West Airlines, Inc.

Dear Mr. Siegel:

This determination addresses the carrier's December 15, 1997, Motion for Reconsideration of the Board's decision in America West Airlines, Inc., 25 NMB 127 (1997). The carrier also requested a stay of the re-run election ordered in the Board's decision. The International Brotherhood of Teamsters (IBT) filed a response on January 7, 1998.

For the reasons set forth below, the Carrier's Motion for Reconsideration is denied. The Motion for a stay of the election is also denied.

I.

A.

In America West, supra, the Board found that the carrier's actions had tainted the laboratory conditions in an election involving the craft or class of Stock Clerks. Of 40 eligible voters, 19 had cast valid ballots for the IBT.

The Board based its decision upon the evidence and arguments submitted by the participants, as well as the evidence obtained through the employee interviews conducted by the Mediator assigned to investigate the case.

To restore the laboratory conditions, the Board ordered a re-run election using its standard ballot

with a special Notice to the employees, using the original cut-off date of June 25, 1996.

In support of its Motion for Reconsideration, the carrier makes several arguments. First, America West contends that the Board should have placed greater weight on sworn declarations from carrier officials rather than on the employee statements submitted by the IBT and/or obtained by the Mediator. The carrier suggests that the Board "conduct a hearing with live testimony ...." Second, the carrier asserts that the Notice which the Board proposes to use in the re-run election is improper in two ways. According to America West, the reference in the Notice to Section 2, Fourth of the Railway Labor Act "violates the principles announced in" America West Airlines, Inc. v National Mediation Board, 743 F. Supp. 693 (D. Aug. 1990), aff'd 986 F. 2d 1252 (9th Cir. 1992). The carrier also takes issue with the portion of the Notice which states that its conduct, "taken as a whole, interfered with, influenced or coerced employees' choice of representative under Section 2, Ninth of the Act." America West argues that this language is inconsistent with the Board's specific finding that a carrier supervisor interrogated employees as to their choice of representative.

Finally, America West maintains that changes in the craft or class impel the use of a different cut- off date. Since July 1996, the original cut-off date, six new positions have been added and, according to the carrier, only 32 of the original 40 Stock Clerks remain in the craft or class.

B.

The IBT urges the Board to reject the carrier's Motion. The organization cites Section 18.0 of the Board's Representation Manual which governs Motions for Reconsideration, noting that, "[w]hile America West may disagree with the Board's credibility determination and its resolution of factual disputes such disagreements do not justify re-reviewing previously submitted evidence ...." According to the IBT, the carrier's suggestion for a hearing "is absurd and obviously made with the intent to intimidate its employees...."

The organization also points to the fact that subsequent to the District Court of Arizona and 9th Circuit decisions in America West, Inc. v. National Mediation Board, 743 F. Supp 693 (D, Ariz. 1990) aff'd, 986 F. 2d 1252 (9th Cir. 1992), the Board modified the language contained in the Notice it sends out in re-run elections. The IBT cites the recent decision in US Airways v. National Mediation Board, 155 LRRM 2983 (D.D.C. 1997), in which the District Court noted that the sentence with which the Ninth Circuit was concerned had been eliminated from the Notice. 155 LRRM 2983, 2984, n.1. In addition, the IBT characterizes the carrier's suggestion that the Board "is prohibited from advising employees of the existence of a federal statute which protects their rights" as "absurd."

Finally, in response to America West's request that the Board change the cut-off date, the organization cites the Board's policy to only change the cut-off date in instances involving a 100% turnover of employees or a five-year delay in the re- run.

II.

A.

Section 18.0 of the Board's Representation Manual provides as follows:

Motions for Reconsideration of Board decisions concerning jurisdiction, craft or class, challenges or objections or 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 five (5) working 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.

The Board's review of the carrier's submissions in support of its Motion for Reconsideration reveals an insufficient basis for granting the relief sought.

B.

America West's argument regarding the Board's investigation does not provide grounds for re-doing the investigation by holding a hearing, modifying the notice, or changing the cut-off date.

The Board's exclusive discretionary authority to "establish the rules governing elections" and "the details of selecting representatives" is well- established. Brotherhood of Ry. S.S. Clerks v. Ass'n for the Benefit of Non-Contract Employees, 380 U.S. 650, 668-69 (1995) ("Railway Clerks"). The United States Supreme Court specifically stated in Railway Clerks, "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 in each case." 380 U.S. at 662. The means and methodology which the Board repeatedly has used in its investigation of interference allegations is based on over 60 years of experience. It is frequently necessary for the Board to make credibility determinations based upon review of documents and/or the testimony of employees taken by its investigators. As stated in the Board's previous decision in this matter, four employees provided credible evidence that America West supervisor Dan Hanifin interrogated employees about their voting choices during the election period. The Board found that Hanifin's actions tainted the laboratory conditions especially in view of the small size of the craft or class and the closeness of the election. America West, supra, at 140.

The carrier's suggestion for a hearing also poses a problem for the Board as such a practice might well impede the Board's ability to investigate. Employees who provide testimony about carrier activity which may have tainted the laboratory conditions are, in the Board's experience, generally fearful of retribution on the part of the carrier should they be identified as the source of that testimony.

C.

The Board also finds America West's argument about the use of the special Notice unpersuasive. In the first place, the Notice which the Board proposes to use in the re-run election is not the same as the Notice which the Arizona District Court found objectionable. Subsequent to the court's decision the Board removed the specific language cited by the court as objectionable. More significantly, however, the Board's authority to employ the Notice as one of its investigatory tools has been upheld by other courts. In Metroflight, Inc. v. NMB, 820 F. Supp. 288, 291 (N.D. Tex. 1992), the court held: "Metroflight is unable to point to a specific part of the RLA which prohibits the NMB from attempting to counteract the effects of previous election interference by a carrier through means such as the Notice." See also Key Airlines, Inc. v. NMB, 745 F. Supp. 749 (D.D.C. 1990).

D.

America West also has failed to provide a sufficient basis for the Board to change the cut-off date. The Board has changed the cut-off date only in extremely rare circumstances. Arkansas & Missouri Railroad, 25 NMB 92 (1997); The Indiana Rail Road Company, 25 NMB 68 (1997); Wisconsin Central Ltd./Fox Valley & Western Ltd, 24 NMB 64 (1996); America West Airlines, Inc., 21 NMB 293 (1994). In America West, the Board declined to change the cut-off date despite a lapse of almost six years between the original date and the re-run election. Similarly, the Board did not change the cut-off date in cases where there were either changes in the composition of the craft or class or a lengthy time period after the original cut- off date. U.S. Air, Inc., 16 NMB 63 (1988); British Airways, Inc.; 7 NMB 457 (1980); and Air Canada, 7 NMB 71 (1979). The Board's decisions in the latter two cases were upheld by the courts. British Airways, v. NMB, 533 F. Supp. 150 (E.D.N.Y.), aff'd, 685 F. 2d 52 (2d Cir. 1982); Air Canada v. NMB, 478 F. Supp. 615 (S.D.N.Y.), aff'd, 659 F. 2d 1057 (2d Cir. 1981).

In the present case, the carrier has not demonstrated sufficient extraordinary circumstances to warrant changing the cut-off date.

III.

The Board has carefully considered the record in this case, including the submissions from the carrier and the IBT submitted in December 1997 and January 1998. Based upon its review, the Board finds no basis to grant the relief requested by the carrier. In addition, the Board declines either to rescind its order of its Notice or to modify the Notice. Finally, the cut-off date will remain the same.

Ballots will be mailed February 4, 1998, and the count will take place March 5, 1998.

By direction of the NATIONAL MEDIATION BOARD.

Stephen E. Crable

Chief of Staff

Copy to:

Mr. Ray Benning

Paula J. Caira, Esq.

Chris A. Hollinger, Esq.